January 01, 2015

The Miscast Lawyer

Jonathan Shapiro

Note: This article is an excerpt from the book  Lawyers, Liars, and the Art of Storytelling by Jonathan Shapiro. The book is available for purchase in the ABA webstore. 

Once upon a time, Harvey Weinstein and I were sitting in a Town Car being driven through Manhattan.1 Weinstein is the greatest living movie impresario of our time. Ask him. He’s not shy. He will tell you himself.

“Sorry I’m late,” he said when we first shook hands, over breakfast at the Peninsula Hotel in Beverly Hills. He just flew in from the Super Bowl, he said, where he spent the whole time talking to former President George W. Bush about Weinstein’s latest film, The King’s Speech.

Weinstein and another famous producer had an idea for a television series. I was hired to help sell the show to a network and then write the pilot script.

The details were fuzzy. Apparently, it was to be a one-hour drama based on a real person. He was a charismatic former law enforcement officer and bon vivant. I had not met him—or anyone like him—but I got the drift of what the show could be. It would be dark but funny, twisted but not too twisted. The hero would be handsome but not pretty, tough but not cruel, resourceful but no off-putting genius. He would be a modern-day knight errant, serving rich and famous patrons, in their world, you understand, but not of it, true to his working-class roots, street-savvy, but Protean in his ability to move in and out of the many tribes that make up modern-day America.

“But not Ray Donovan”—the Showtime hit series was already on the air at this point. “And our hero can’t be a lawyer,” Weinstein said.

“Got it,” I said. What I should have done instead is thanked him for the offer and politely declined. I was miscast to write this story and should have said so. I didn’t.

Now we were in New York trying to sell the show to a cable network. The early afternoon weather was cool and rainy. Dark skies and grey streets, yellow taxis and red brake lights smearing colors through the water-streaked car windows.

Several other Weinstein Company employees were with us. One had taken me to lunch at Nobu. She had been Weinstein’s assistant. Now she was the head of his nascent television production company. Weinstein had been going to join us for lunch but didn’t. Thanks to her previous position, she knew his to-go order.

A cell phone rang in the car. Madonna was on the line. She and Weinstein talked about the music for the final credits of a movie she had directed and he was producing: W.E.

Sitting in the white-hot center of show business should have been more fun. But something was wrong. I can’t remember what exactly I ate at Nobu. I had a lot of it, and quickly too, because we were running late. Now it disagreed with me. Violently.

My stomach churned and growled. Clammy sweat sprung from my forehead. It trickled down my sides, sticking to my shirt, and pasting my hair down on my head. I stared out of the fogged-up window.

Traffic was gridlock. Not even the greatest movie producer of our age can alter time or traffic. Despite our driver’s suicidal efforts, we were going to be late.

Nerves began to fray. The overheated interior of the car became suffocating. I tried to open my window. It was locked.

Suddenly, involuntarily, an internal valve in the area of my lower abdomen went into a titanic spasm. Something else, something bad and noticeable, erupted farther along my digestive tract. I wondered if Madonna heard. “Jesus,” Weinstein muttered, covering the cell phone and speaking to his assistants, “What the fuck did you let him eat?”

As the car caromed down the street, I hoped for a crash, anything to stop the disaster ahead. Unfortunately, we got to the meeting safely. But we did not live happily ever after.

The End.

By “the end,” I mean of my career writing for Weinstein. It is a fine place to begin studying the mechanics of storytelling.

Aristotle taught that everything must have a telos, a purpose. But a story must not simply have a purpose. That purpose must be clear to the audience.

My purpose in telling the Weinstein story is to define what a story is, identify a few important story elements, and discuss some principles that apply to all stories. My goal is also to show that while all of us can be miscast as storytellers from time to time, there is always something we can do to make things better.

While writers and lawyers employ different terms when they discuss story elements, they can and should be used interchangeably.

Not because the terms and concepts are exactly alike. Save your carping; I know they are not exactly alike. The purpose of this book is to get lawyers more comfortable with storytelling. Whether they realize it or not, they already know a lot about the elements that make up stories, as well as the basic structure of stories themselves.

Setting/Jurisdiction

Every episode of the Weinstein series was to begin and end in a particular New York City restaurant, one that really exists. Famous for catering to the famous and infamous, the place would become a character unto itself.

The setting of a story gives the audience a point of reference, like a giant “You Are Here” arrow on a map. The more familiar the setting, the more likely it is that the audience will bring their own knowledge and understanding of the world where the story takes place and the rules that apply there. Even if the audience has never been to the famous New York restaurant, chances are they have seen or heard stories about places like that.

The lawyer’s term for setting is jurisdiction. In this, lawyers don’t enjoy the writer’s freedom. A case of patent infringement or murder has a limited number of potential settings. If you do get to choose, the questions to consider are: Who do you want to tell your story to? Where are you likely to get to tell the story the way you want to tell it, with as little interference and editing as possible?

In the early 1990s, when I was at the US Department of Justice, the odd folks across the hall made up the Child Exploitation & Obscenity Unit. Even though “child” was in their name, they tended to bring cases involving adults where no children were involved. And they always seemed to charge them in places like Utah, where the community standard of what constituted obscene material was different than New York or California. These were storytellers who understood the value of setting.

There is another aspect of setting evident in the Weinstein story. It is based on a true story. Strike that. It is a true story. Or as true as I remember it; though, in all fairness, I was unwell at the time and there was no court reporter present.

Claiming a story is true sets it in the real world, where the rules of physics and human nature apply. It also gives the story credibility, so long as we find the storyteller credible. Stories lawyers tell are always based on the truth. If they are not, the lawyer will soon no longer be a lawyer.

Characters/Parties and Potential Witnesses

It is inevitable that stories and cases about people involve people. It is a good thing, too. People are always the most interesting part of any story or case, particularly to other people.

People in a story are called characters. People in the real world of law can be characters and even character witnesses, but they are usually called something else—parties, clients, witnesses, etc. Again, for our purposes, we shall call them all characters. The job of the storyteller is to recognize, understand and use the characters to further the story. Because someone is a potential character does not mean they should be in the story. Not everyone who could be brought into the story should be.

Here are a few simple rules when dealing with characters: No character in a law case or story should be presented unless he or she is interesting. By definition, no one can be interesting in a case or story unless he or she is relevant. If the characters or witnesses are necessary to the story but seem uninteresting, the role of the writer and lawyer is to make them interesting.

In Storytelling for Lawyers, Philip N. Meyer analogizes lawyers to film directors.2 But I think an equally valid analogy is with executive producers such as Weinstein. He neither writes the script nor directs the action nor plays any role. Most of the components of the story he presents exist independent of him. They were there before he arrived and could have been developed by someone else.

Yet he has become the most important, influential force in modern filmmaking. He has won numerous Academy Awards and earned hundreds of millions of dollars. What does he do, exactly? How does he do it? What is the secret to success? It isn’t complicated. The man can spot a good story.

That’s it. That is his genius—to know the difference between what could be a sure-fire hit or a dismal, though well-intentioned, flop—and to invest his money, time, and energy accordingly.

It is the same talent that makes plaintiff’s lawyers rich, prosecutors undefeated, defense lawyers famous, the general counsel essential, and private equity lawyers worth every penny they get.

Enormous risk is involved in this kind of work. Pick the wrong story or case and the producer or lawyer can lose everything. Few Fortune 500 CEOs have Weinstein’s talent for grabbing a good story and running with it. Few can boast a more successful, influential, or recognizable brand. The closest I can think of are some of the nation’s best contingent fee attorneys.

As a character in a story, Weinstein is hard to beat. Gamblers and savants are always interesting.

End Notes

1. March 2011.

2. Philip N. Meyer, Storytelling for Lawyers (New York: Oxford University Press, 2014).

Reprinted with permission from Lawyers, Liars, and the Art of Storytelling, by Jonathan Shapiro. Copyright 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.

Jonathan Shapiro

Jonathan Shapiro is Of Counsel at Kirland & Ellis for entertainment litigation. He also serves as the Chairman of the California Commission on Gernovment Oversight and Efficiency. His book, Lawyers, Liars, and the Art of Storytelling, was published by the American Bar Association and is available for purchase in the ABA webstore.