The Irrevocable Connection Between Stories and Litigation
Stories and litigation. Litigation and stories. They are irrevocably connected in my life, as they should be.
I wrote terrible stories in high school and realized very soon that I would not make my living as a writer, although what I perceived as the romance of doing so still tugged me in that direction. Even in college, as a chemistry major, the stories didn’t stop. I wrote my English Composition final examination in the form of a short story. I wrote my final paper in Analytical Chemistry (a drier subject cannot be imagined) in the form of a short story, which ended, as I now recall, with a classmate’s unexpected trip to a hospital to deliver a baby. And it was hardly an accident that, when I decided I would be an incompetent chemist and elected to go to law school, the allure of Perry Mason – my childhood weekly television stories of courtroom drama – provided a motivating force. I wanted to be the one to stand up and eviscerate a lying witness through brilliant cross-examination.
It should be no surprise, therefore, that I have found inspiration for many creative efforts in the real-life stories I encountered during 40 years as a lawyer.
A young police officer shot an unarmed teenager in the back in the town of Winnsboro, Texas, killing him in front of a score of horrified, everyday citizens; he was scared that the teenager was armed and was about to whirl and fire. The trial attorney who investigated this case – no charges were ever filed – is now pursuing his MFA at American University and cannot let go of the story. Something needs to be explained; sense must be made of this tragic event that defies explanation. My story, “Specific Intent,” tries to do that.
Farm labor contractors in Florida held a group of migrant workers in a condition of involuntary servitude, forcing them to pick oranges for no pay. The contractors threatened the laborers and committed acts of actual violence, breaking one of the workers’ arms, and the federal government charged them with violations of post-Civil War statutes making these behaviors criminal. The trial attorney at the Civil Rights Division of the United States Department of Justice – now pursuing his MFA – has the job of taking care of these six migrant workers during the three-week trial, herding them from their hotel to a restaurant to the courthouse, helping to prepare their testimony, trying to keep them sober, parceling out to them their witness fees from the U.S. Marshal’s Service when their testimony has been completed and they’ve been released.
The experience leads to my non-fiction piece “Trial in Tampa” that won third place in a local writing competition for trial lawyers, but that was not enough to get this story out of my system.
Ten years after the trial, I write a screenplay by the same name. Now it’s fiction, now the Bruce character is the hero, now the fiction has more intrigue than the actual facts warranted, but it’s all right to say that the screenplay is “based on a true story.” An agent offers to represent me, but I decide she’s a kook and never follow up. But that’s not the end, either.
Twenty-three years after the trial, I write a short story entitled “Clayton Norris,” taking without permission the name of one of the migrants. The story is rejected by a literary magazine with the comment “these things don’t really happen.” They do. And even that story is not enough, either. He writes yet another story based on slavery in the United States entitled “The Ultimate Escape,” a micro-fiction that is picked up by a now defunct market, In Between Altered States. Enough? The story is still there in my mind and will always be, waiting perhaps for another opportunity to emerge into literature.
Indeed, each of the cases I tried over my career stemmed from a story of its own. Some of these I incorporated well into my consciousness, though some eluded me. Those are the times I often lost, such as the case in DC Superior Court in which the defendant slugged a friend in the middle of a neighborhood basketball game and broke his friend’s jaw. Jurors didn’t want the simple fact of a swing, a hit, and a bad result to convict on assault and battery. They wanted and needed to see a bigger story: Who were these people? What led up to this event? What happened afterward? It took a few losses of this type for me to realize that there’s always a larger picture, and a lawyer fails to do his job correctly and motivate the factfinders to do what he wants unless he finds that larger picture and works into it the key, legally-significant events of the case.
All trial lawyers craft narratives for their cases, recognizing that jurors need stories to make sense of facts. The lawyers pick the facts and documents that help them tell the larger story, and obviously, in the adversarial system in which they operate, they pick different facts and documents. For each document of issue, lawyers train their witnesses to articulate the proper interpretation if they can. We know this in politics as “spin,” and it applies with equal force in litigation.
The attorneys draft, edit, cast, direct, and perform competing stories on a stage, and the audience must take these stories and weigh them against each other, hoping to get it right. Which stories win? Not always the ones that should. By bad luck, by the jury’s failure to abide by a judge’s instructions concerning the need to put aside sympathy and prejudice, by incoherence or lack of credibility of one of the stories, one narrative may lose when it should have won, but that’s our system of justice.
Bruce J. Berger is a contributing writer for Café Américain and a first-year candidate in the American University’s Creative Writing MFA program.