What Lawyers Can Learn from Screenwriters
|By JULIE HILDEN
|Monday, August 17, 2009|
They write lengthy, highly-structured documents, sometimes under intense time pressure. Most people think that they make too much money, given the nature of what they do. Any results they get, good or bad, depend vitally upon the opinions of other people – often, many other people. They often wait nervously for the verdict on their work, at a time when they no longer have any control over what that verdict will be -- but that utter lack of power doesn't make them any less nervous, and perhaps more so. And for every sweet victory they dwell upon, they likely also have to put out of their minds a number of crushing defeats.
As readers may have guessed, the privileged and unfortunate groups of writers to which I'm referring are attorneys and screenwriters. And in this column, I'll argue that – because the two groups do have quite a bit in common -- the advice that is often given to screenwriters sometimes applies to lawyers, too.
Depart From Chronological Order at Your Peril
For instance, screenwriters are often warned to avoid the use of flashbacks, and not to skip around in time in their scripts unless they have a truly excellent reason for doing so. It's said that departing from chronological order can cause viewer confusion and "take the viewer out of the story," destroying his or her immersion in the plot and identification with the characters.
I think the same rule is true when it comes to the "Facts" section of legal briefs: Here, too, chronological order is ideal. But it's amazing the number of briefs that ignore it – leaving the reader confused and distracted by having to try to figure out, on his or her own, the time sequence of what occurred.
Occasionally, in a truly complex case, it's possible that another type of ordering could be used effectively in the "Facts" section – for instance, proceeding plaintiff-by-plaintiff, or defendant-by-defendant. But even then, chronological order should be used in each subsection. And ideally, the subsections should be preceded by a chronological overview of the case as a whole.
Particularly for plaintiffs, using chronological order alone can be devastating, because every reader has the tendency to connect a series of facts, and to infer causation from correlation. In a medical malpractice case, for example, simply relating the sequence of a doctor's actions, and the sequence of a patient's subsequent harms, can by itself be devastating.
Put another way, a series of facts, alone, can be extremely powerful in suggesting to a reader, viewer, or juror that the conclusion you want them to come to is natural and inexorable – not merely an argument you're making, but a truth about the world.
But what if the facts are bad for your side, and they only get worse when you put them in chronological order? Even then, I still believe that it won't do much good to depart from chronology in the "Facts" section; you'll only submit a muddy brief that will contrast poorly with your opponent's crystal-clear one. Instead, giving a complete and candid account of the facts to the court, but also focusing on the few facts that cut in your favor and emphasizing their importance – from both a legal and, more subtly, a policy standpoint – is likely to be a better tactic.
Let the Audience "Add Up Two Plus Two"
Screenwriters are also frequently told not to use voiceover if they can possibly help it, because it's ineffective (and even, at times, almost insulting) to describe to viewers what they are already seeing for themselves. Similarly, I think that lawyers should be careful not to "spin" the facts too hard in the "Facts" section of a brief, or when they are arguing to a jury. To a significant extent, the facts – like the events on screen in the movie theater -- need to speak for themselves. The more the lawyer seems to be laboring to "spin" them, the more he or she may tip off a judge, law clerk, or juror that this case is a weak one.
For instance, in the "Facts" section of a brief, calling an action a "breach" may be less effective than simply reciting the relevant contract provisions and then saying what happened. Using adjectives to make another party seem villainous usually rings empty, as well. Yet simply reciting the particular fraudulent statement that your complaint alleges was told; explaining why your client relied on it; and describing the fallout of that lie, may be brutally effective. If the facts tell a compelling enough story, then the law – and many legal terms, characterizations, and subjective adjectives -- can truly be left to the "Argument" section where they belong.
Ultimately, imposing legal characterizations in the "Facts" section of a brief clouds the waters and may even make the judge or law clerk distrust you. Bare facts, however, let the reader see the case clear. And if the facts show that you win on the equities, then the reader – or juror – will naturally want you to win on the law, if at all possible, as he or she moves into the "Argument" section of the brief.
Analogously, one of Billy Wilder's top ten screenwriting tips, which he credited to director Ernst Lubitsch, was "Let the audience add up two plus two. They'll love you forever."
Of course, giving too much latitude to an audience (or a judge, or jury) means that he, she, or it might decide a given question in a way you don't like, or didn't foresee. But that's always a risk. And applying Wilder's advice in the legal context seems much less risky when we note that all that Wilder is giving the audience, is the latitude to add up "two plus two." There's only one right answer to that sum, and there's no question that the audience will get to it. But the pleasure is that it is allowed to be their answer, not the screenwriter's answer, foisted upon them.
Similarly, jurors need to feel they are reaching their answer. Thus, while a summation should show that there is only one right answer to be reached, its tone is often deferential, using wording such as "You may consider…" or "As you review the evidence…". In contrast, it may well be a mistake for an attorney giving a summation (or an opening) to use wording such as "You must find," because the truth is that there is nothing the jury "must" do – except let the judge know what its verdict is, or that the jurors cannot agree.
Perhaps saying "You must find" might work in a case where the law is incredibly far off from the equities – such as when an attorney is urging a jury to let an obvious perpetrator off on a legal technicality, or essentially urging jury nullification but not in so many words. But even in such extreme cases, it strikes me that using "must" could strike jurors as disrespectful – in the same way that pounding home a fairly obvious plot twist could easily alienate a movie audience that saw it coming a mile away. The point of the summation is to inform jury deliberations, not pre-empt them.
Choose a Theme Early On, and Draw It Through Consistently
Another piece of advice that is often given to screenwriters is to be keenly aware of what their theme is, and to thread it through the screenplay -- so that the movie has a deeper resonance and importance than it would if it were a mere recitation of a series of dramatic events.
Similarly, theming a legal case can be an effective tactic. Indeed, five of the most powerful words in the law are "This is a case about…." Many attorneys use this phrasing at the start of a summary judgment motion, opening, or closing. One partner for whom I worked also used to add a sentence to this effect early on in complaints that he wrote, in order to frame the case for the judge – knowing that many judges may flip through a complaint quickly to get a sense of the case.
Asking why a story is larger than its events alone is similar to asking why a given legal case has larger ramifications. Lawyers tend to cite policy arguments but in the end, do they come down to simple virtue and vice – the idea that evil will prosper? If so, attorneys might do well to bare the real stakes of their case, the more primal the better – just as screenwriters are told to do.