These stories, of course, do not simply arise full-formed from the evidence. Instead, they are constructed out of the evidence, in a way that the lawyer thinks makes sense -- and often according to a narrative paradigm that is familiar to the lawyer. Where do these paradigms come from? The source may be as close as the television set in your living room, or the press release your company issued yesterday.
How Lawyers Borrow From Popular Culture
In his recent book When Law Goes Pop -- The Vanishing Line Between Law and Popular Culture, New York Law School Professor Richard Sherwin makes the interesting argument that lawyers' stories have, in many ways, been shaped by popular culture. According to Sherwin, legal meanings are "thinning" as they collapse into the popular vernacular. And, in his view, law has "[taken] root in a culture of spectacle" by adopting the communicative style and techniques of public relations.
According to Sherwin, lawyers are using methods of persuasion that borrow from fiction. They are also manipulating the press to win cases, much as a publicist might do. Judges, for their part, increasingly are allowing cameras in the courtroom. And the public is pushing the law/entertainment merger forward, as its endless appetite for legal docudramas and reality-based cop shows grows.
Can this marriage work? Not according to Sherwin, who seems more in favor of a quickie divorce in the law/entertainment union. He points out that one danger of working on a P.R. or entertainment model is that while the goal of public relations is to achieve the right subjective spin, the goal of law traditionally has been a search for "objective" truth and universal justice. Another risk is that P.R. and entertainment attempt to serve popular passions and impulses, while law's traditional function -- think, for example, of the Bill of Rights -- has been to check them.
The Trial Lawyer as Storyteller: How Gerry Spence Used Popular Mythology To Win His Case
In the most compelling part of the book, Sherwin -- a former prosecutor -- examines the storytelling techniques used by successful lawyers in well-publicized criminal trials. His analysis here is sophisticated, informative and insightful.
For example, Sherwin considers trial lawyer Gerry Spence's closing argument in the trial of Randy Weaver on charges related to the killing of a federal marshal in Ruby Ridge, Idaho. Spence drew on American mythology in urging the jurors to resist tyranny's threat to freedom as Thomas Jefferson and John Adams did. And his dazzling plea to the jury employed a host of clever tactics that included literary references -- including a reference to the Weavers' dog as "Old Yeller." The jury acquitted Randy Weaver on all counts.
Popular Culture -- But How Popular?and on pop culture, it is also replete with academic jargon; the real audience of this book, ironically, is legal scholars -- not the general public. While law may have gone pop, this book is no evidence of that. Bonfire of the Vanities -- an equally penetrating exploration of the relationship between law and popular culture -- is also a vastly better read. Nevertheless, serious scholars will appreciate Sherwin's in-depth analysis.
Sherwin's elite bent may also be the reason why much of the culture that he examines would not be recognized by most people as "popular." A chapter on popular film and T.V. includes, for example, analyses of The Thin Blue Line, Krzysztof Kieslowski's Red, and Phillip Haas's The Music of Chance. None of these is exactly multiplex fare -- the graduate faculty lounge projector is a more likely venue. And referencing any of them in a summation would be more likely to garner jurors' puzzled glances than their nods of agreement.
Sherwin's Conclusion: A Warning About Storytelling And Law
Sherwin ends with a recommendation and a warning. Noting that the savvy lawyer must know what sells -- and learn to use narrative devices, visual technology, and other cultural models in the courtroom -- Sherwin recommends that law schools teach these techniques.
But Sherwin also warns that postmodern storytelling -- where symbolic truth overtakes factual truth -- tends to blur beyond recognition truth, meaning and objective reality, the very qualities on which the law is predicated. Law should go pop, he advises, but not by selling out its very soul.