One night while canal flipping, Chapon happened on an episode I wrote of the ABC television series Boston Legal involving Louisiana’s decision to execute a mentally disabled man accused of raping a child.
It was an unusual, even unprecedented episode.
Since the Supreme Court bans cameras, we wanted to show the American public a version of what actually happens there.
Comparing the show’s production calendar and broadcast schedule with the Court docket, we based the episode on a pending case, Kennedy v. Louisiana, with the hope that it would air the week before the actual argument was held.1
The question before the Court—and television version of the Court—was whether capital punishment for a crime in which no one died amounted to cruel and unusual punishment in violation of the 8th Amendment of the Constitution.
It was the easiest script I ever wrote because the appellate briefs provided the facts and law.
Writing the justices’ dialogue was easy, too.
The Supreme Court isn’t just the highest in the land—it is also the longest-running law show in history, with a rotating cast of regulars. You love them, you hate them, but most of all, you know them; how they think, how they talk, what they want.
You don’t have to guess what they would ask or how they would ask it. Putting words in their mouths was like lawyer fantasy camp.
Walking into casting sessions, however, was surreal. Who knew there were so many actresses in Hollywood who looked like Ruth Bader Ginsburg? The man we cast as Chief Justice John Roberts was so perfectly bland in appearance, so sneakily smart that he should make a career out of playing the role.
The only hard part was finding a credible Clarence Thomas. I don’t think we succeeded.
The script’s structure was also obvious. Supreme Court practice has its “got-to-have” scenes, including the inevitable mock argument, with all its own stresses. The arguments had already been written by the parties. The challenge was to boil them down in an accessible and entertaining way.
The Court’s interior was built on the production stage. Some license was taken. Denny Crane’s only interest in the case was a betting one. He wagered $10,000 that they could get the otherwise silent Justice Thomas to say something during the argument. He won the bet.
Stanford Law School professor Jeffrey Fisher, who argued the real child rape case on April 16, has seen and was impressed by the episode… “It was striking how closely the episode hewed to the real facts in Kennedy, down to the most minute detail, and (certain rants aside) to the real legal arguments the parties are advancing,” Fisher said in an article about the episode. “The producers obviously had studied our briefing quite closely.”2
We had indeed. As Tony Mauro noted in the Legal Times article cited here, our research indicated that James Spader’s attorney character, Alan Shore, would never in a million years have said some of the things he said, such as when he attacks the “overtly and shamelessly pro-business” Court, and takes a sharp detour from the rape case to slam Justice Antonin Scalia for his seemingly likely support for ExxonMobil in the case—also argued recently—involving punitive damages awarded after the Exxon Valdez oil spill. “Nineteen years after the Valdez oil spill and the plaintiffs are still waiting to be fully compensated,” Shore says.
When the Scalia character interjects sharply, “You are getting so far off point,” Shore shoots back: “My point is, who are you people? You’ve transformed this court from being a governmental branch devoted to civil rights and liberties into a protector of discrimination, a guardian of government, a slave to moneyed interests and big business and today, hallelujah, you seek to kill a mentally disabled man.”3
[Shore eventually] concludes, “If mercy truly lives within these walls, within your hearts as justices, as people, you cannot cause this man to be injected with chemicals for the purpose of killing him.”4
Fisher told Mauro:
“I thought the episode did an admirable job of exploring one of the paradoxes of Supreme Court practice—namely, that lawyers represent clients who usually have personal goals, but the Court is much more interested in resolving legal issues than doing individualized justice … Most Supreme Court advocates have been in the position, one way or another, of having to explain to a client that even though a certain result in a lower court is wrong and does an injustice, the Court will not care about that… There are good reasons for that reality, of course, but I do think it strikes some in the public as odd.”5
Mauro noted that the “remarkable level of detail and accuracy in its portrayal of the Court—including references to little-known sculptures and customs at the Court—has given the episode a life of its own.’”6
Mauro also quoted Slate’s Supreme Court correspondent Dahlia Lithwick, who wrote: “‘I can’t recall another time I’ve seen anything as close to the real justices represented on prime-time television, or a moment in which someone in the popular culture… really took on the Roberts Court as a collection of political actors.’”7
The real life Court’s ruling would not come down for several months. When it did, it affirmed our show’s holding, striking down the Louisiana law as unconstitutional. And we managed to get it all done in less than one hour. Not that it counted.
Still, until the Court allows cameras to broadcast their arguments, the episode will be as close as most people will ever get to seeing what the Justices do and how they do it.
A few years after the Boston Legal episode, we took a family trip to Washington, DC. The highlight was a tour of the Supreme Court, arranged by a friend and former Court Clerk. One of the justice’s secretaries was kind enough to take us into the main chamber, conference rooms, offices, and basketball court where Justice Byron White enjoyed charging over clerks.
Walking down a stairwell toward the end of the tour, I turned to say something to the woman, tripped, and went tumbling head over heels down the entire length of the staircase.
As I lay flat on my back, searing pain running up my leg, the woman stared down at me.
“You can’t sue. The Court has immunity.”
Back in the hotel, I could not get my shoe off without two of the kids pulling. You can make fun of the Court all you want. But the Court gets the last word. Chapon turned the Boston Legal episode and others I wrote into a research article for one of France’s academic journals,8 providing a comparative study of how complicated legal issues are presented in the United States.
“TV series are not yet regarded in France as a serious source of information,” she explained to me via e-mail. “It is considered as a subculture whose only purpose is to entertain desperate housewives. The whole point of my dissertation is to prove the contrary.”
From “a didactic point of view,” she concluded, the episode “conveyed the highest amount of information about the law and legal culture in the shortest amount of time to the largest number of people.”
Furthermore, the specialized “discourse is highly accurate, being written by a lawyer, so it is a highly reliable source in order to increase the legal vocabulary of French law students” who are trying to understand basic American principles, as well as “language teachers who have no legal training.”
Storytelling, Chapon concluded, it a great way to teach law and to understand it. It is a shame American students are not taught how to do it.
Everyone who graduates law school almost immediately realizes how poorly law school prepared them for the actual practice of law.
Law students are taught how and when law developed, by whom, what the law is generally, and where they can find answers about it if they don’t know. In general, they are not taught how to convey information in a cogent, persuasive way to the client who needs the help; to opposing counsel, who has a different client and point of view; or to the decision-maker who has to make the final call.
Despite the fact that all law school graduates who practice law will have to write statements of facts for briefs, memos, and client letters, law schools don’t teach them how to marshal facts and law into coherent stories.
Instead, lawyers are taught to communicate with other lawyers or judges rather than simply learning how to communicate with people.
Storytelling is a creative process. But creativity is not just discouraged in law school—it is banned. Only “legal” writing can be taught, and it must be coupled with “research.” The emphasis is on the proper forms of citations rather than on the mechanics of how to tell a good story. Talking is strictly controlled. Students speak when called upon to do so in the context of being graded.
Professor Daube thought law schools don’t teach storytelling because of intellectual snobbery. Academics see the subject as unworthy of their time and effort. No one has received tenure for it. Law reviews don’t publish stories. Thus, storytelling has no place in the curriculum.
Even in the rare cases where law schools do teach storytelling, they treat it as a novelty, an elective, less important than, say, property law or civil procedure.
Others fall back into academic tropes, turning what should be of practical use into unhelpful theory. They twist storytelling into a pedantic exercise; agitprop only other academics could love.
Richard A. Posner calls it “legal narratology,”9 the tendency of some law professor to produce incomprehensible textual analysis and their own didactic stories.
In Law’s Stories: Narrative and Rhetoric in the Law, Professor Peter Brooks posed a reasonable question: “Why doesn’t the law pay more attention to narratives, to narrative analysis and even narrative theory? They would seem to be almost as relevant as economic or social theory to understanding how cases come to the law and are settled by the law.”10
Dershowitz, as noted, rejected the notion that narrative has a place in legal cases. It is misleading, he says. Stories have logic, but cases are not logical; people often don’t behave rationally. Presenting cases like stories edits out the possibility that our eyes deceive us, that what appears to be true is really just a lie.11
He makes a point. The rule in the US Attorney’s Office in Los Angeles was to never let a writer, actor, or director stay on a jury. They tend to want happy endings with plenty of twists and turns. As prosecutors, we wanted simple, easy to follow stories with unhappy endings. Justice is not sweet. At best it is bittersweet. Guilty verdicts are often warranted but almost never the cause of happiness.
To present a case as a story brings to it certain expectations. It suggests a logical resolution should be reached. But that is what makes storytelling so important. Dershowitz confuses dramatic narrative itself with badly crafted narratives. Stories that that fail to adhere to the rhetorical triangle aren’t usually worth listening to in or out of court, not just because they fail to reflect the actual experiences of the audience, but because they lack credibility.
“The life of the law is not logic: it has been experience,” Holmes said. The same is true of persuasive storytelling.
The illogical experiences of life are what make stories real. Failing to account for the illogical is bad storytelling.
As for the illogic of Alan Dershowitz criticizing lawyer storytelling, has anyone benefited more from storytelling, or been more responsible for blurring the lines between legal fact and fiction? The man wrote the book Chutzpah for a reason.
Ron Silver portrayed Dershowitz in the movie Reversal of Fortune, the story of how Dershowitz got his client Klaus von Bulow acquitted of murder through what can only be called extremely creative legal narrative.
We cast Silver to basically play Dershowitz again in an episode I cowrote of The Practice. Silver played attorney John Mockler, a tart-tongued, combative, media-savvy defense attorney with a love of confrontation.
A friend of mine visited the set during shooting. I was giving him a tour. Silver stormed up and said he wanted to change the name of the character.
“John Mockler is a stupid name,” Silver declared. “I mean, yeah, I get it,” Silver said sarcastically, rolling his eyes. “Mockler, like he’s mocking the law, oh, like the writer is being so clever.”
When he finished his rant, I introduced Silver to my friend—John Mockler—one of the moving forces behind the Supreme Court decision that struck down inequality in public school financing.
Silver muttered something and slinked away. Several years later, Silver died, presumably not of embarrassment.
Maybe law schools have a problem with storytelling because of misplaced ethical concerns. Storytelling carries a whiff of charlatanism. To create is to make-up, to imagine; to call someone a storyteller can be a gentle way of calling him or her a liar.
The issue is one of nomenclature rather than reality. No proponent of storytelling by lawyers advocates perjury. It is unethical, improper, and wrong to tell stories for the purpose of deceiving someone else.
Show business takes a more liberal view.
Law schools should add storytelling to the curriculum if, for no other reason, because nothing else seems to be working.
Law student enrollment continues to fall. New graduates are saddled with enormous debts and many are having a hard time finding a job to repay their loans.
Anything that has the potential to make law school more relevant (and enjoyable) cannot be bad. And anything that makes lawyers better communicators deserves at least some consideration.
Granted, storytelling is a less objective subject than others. It is not a science. It is a personal practice, filled with artistic choices and subjective decisions; it is a creative process, not a mechanical one. Spot ten writers a white whale and a one-legged sea captain and you will get ten different stories.
Lawyers, in contrast, like bright-line rules. Storytelling, for the most part, doesn’t have any. Norman Mailer described writing as a scary art for a reason.
But that doesn’t mean it isn’t serious. If you doubt it, get to know some writers. You won’t find a more thoughtful, neurotic, obsessed group of professionals anywhere.
Furthermore, there is a well-established, long-standing, highly serious, classical method available to law schools to teach the art of storytelling.
Why isn’t rhetoric taught as a first-year class? Instead of civil procedure or contracts, why not a course that teaches the best way to organize and advocate every conceivable type of information and to tell every single type of law story?
Those are rhetorical questions.
Had Professor Daube been the dean of the law school—the idea made him laugh—he would have added two subjects to the curriculum: poetry and rhetoric.
Poetry is a practical skill. To study poetry involves understanding the meaning of language and its capacity for representation. It is to learn how to convey information that invokes emotion. It involves parsing each word down to its basic part, interpreting the writer’s intention through syntax, word choice, and sentence structure. It is to become a craftsman of language.
Nothing could be more useful for lawyers, whether they are deciphering the terms and conditions of a contract, the meaning of the administrative order, or the purpose of a constitutional provision.
Rhetoric is of equal value. Daube wrote and lectured on its history, its development in Greece and Rome, its different schools, its basic tenets, and its influence on Talmudic exegesis, classical learning, the Renaissance, and the Enlightenment.
Daube was old, old school. But he did not harbor the illusion that the classical language of rhetoric was coming back. Nor did he think his students needed or cared much about what Aristotle had to say.
But he believed telling a persuasive story was at the heart of what lawyers do. And he felt strongly that the classical past offered relevant information on how to do it.
Aristotle’s rhetorical triangle, its elements and uses, remains the lawyer’s best tool for building persuasive and effective stories. Stories told by lawyers in the context of their work are most effective when they utilize all three parts of the rhetorical triangle.12
Such stories establish the lawyer’s expertise as someone worth listening to. They utilize the facts and events in a reasoned way to support the lawyer’s arguments. And they move the audience to feel connected to the lawyer’s point of view.
Aristotle classified arguments into three separate categories:
- Ethos referred to a speech about credibility.
- Logos referred to speech using logic and reason.
- Pathos was an argument that relied on emotion.
Aristotle did not specifically describe these arguments in terms of storytelling. But they clearly apply to any and all storytelling that aims to persuade.
Nor did Aristotle teach these arguments in terms of a triangle. Rhetoricians and high school debate coaches did that. Pythagoras was the triangle man, not Aristotle. In truth, Aristotle might not have approved of the whole triangle concept. He treated each element as a separate argument unto itself, not necessarily as part of a whole.
Still, a triangle is a pleasing shape and has long been a handy pedagogical device, easy to portray, easier to imagine.
NBA Hall of Fame Coach Phil Jackson made a fetish of another type of triangle.13 But Coach Jackson never suggested that each leg was of equal importance. What made him a great coach—and a Zen master of the obvious—was to see that Michael Jordan was the most important leg of the triangle.
Of course, visuals can be misleading. Invariably in books on the subject, the three sides of the rhetorical triangle are depicted with equal lengths. Advocacy and storytelling don’t always have such pleasing symmetry. In the real world, the length of each leg of the rhetorical triangle depends on the circumstances of the case, the facts, the law, the people involved, and any number of other factors.
It is the lawyer’s job to tell the right story, to build the appropriate triangle for his or her client, to make subjective judgments based on the variables as to whether to spend more or less time on establishing ethos, displaying logos, or eliciting pathos.
Every triangle has three sides. But each triangle has its own unique shape and appearance. And while each leg of the triangle deserves its own consideration, it must never come at the expense of the whole.
Ethos without logos is a losing strategy. The age’s overreliance on pathos is almost always fatal. The triangle cannot stand if one of its legs is missing or too weak. The triangle is the strongest where two or three of the legs overlap.
Only the lawyer telling her story can know which leg is her strongest—ethos, logos or pathos—but she must never fail to have all three present in her story.
To be clear, merely invoking Aristotle’s triangle won’t suddenly make you a great storyteller. As we will see, storytelling takes thought, preparation, practice, talent and experience.
But all storytellers would benefit from understanding how the triangle works and how to build stories with the legs of the triangle in mind.
Coach Jackson’s triangle worked for the Chicago Bulls and the Los Angeles Lakers, too; not as smoothly, perhaps, but enough to win four championships.
The year after Professor Daube died, one of the legs of the Lakers’ triangle, Shaquille O’Neal, began referring to himself as “The Big Aristotle.”
Daube admired any practical application of classical learning to modern contexts.
He would have loved The Big Aristotle.
1. Due to a network preemption, it ended up airing six days after the actual argument. See Tony Mauro, “David E. Kelley’s ‘Boston Legal’ Takes on the Roberts Court,” Legal Times, May 5, 2008.
8. Sandrine Chapon, “La peine capitale aux États-Unis à la croisée de la fiction à substrat professionnel et de la source primaire: une étude comparative,” ASp 60 (2011): 21–39.
9. Richard Posner, “Narrative and Narratology in Classroom and Courtroom,” Philosophy and Literature 21 (October 1997): 2; quoted in Peter Brooks and Paul Gewirtz, Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996), 99–105.
10. Quoted in Peter Brooks and Paul Gewirtz, Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996), 99–105.
12. See Paramjit L. Mahli, “The Power of Storytelling in Your Legal Practice,” ABA Practice Management Section, April 2008.
13. The triangle offense uses the three sides of the triangle, with the center at the low post, the forward at the wing, and the guard at the corner. Simple enough until you try to use it in your kid’s youth league.
Reprinted with permission from Lawyers, Lawyers, Liars, and the Art of Storytelling. 2014© by the American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.