Storytelling for Lawyers by Philip Meyer

jury to ponder the questions during the defendant’s closing argument. Perhaps he chooses this strategy to provide the big ending and dramatic closure to his portion of the tale later. Perhaps his strategy is not to fully play his narrative hand: the defendant will not have an opportunity to respond to Spence’s rebuttal argument and cannot then accuse Spence of doing precisely the same thing as Spence now accuses the defendant—that is, of Spence then placing the blame directly on Kerr-McGee with speculation and innuendo.
    Nevertheless, Spence systematically identifies the evidence from which the jury might construct this counterstory: Silkwood’s reports of doctored defective fuel rods; Kerr-McGee’s desperation to obtain the reports that Silkwood planned to turn over to a reporter from The
New York Times;
the search for the never-found documents; forty pounds of plutonium missing from the plant and still unaccounted for; and Kerr-McGee’s taking everything in Silkwood’s residence “down to the Durkee’s dressing” 60 and burying it. Spence does not connect the narrative dots.
    Still, Spence can’t resist observing, “[t]he cause of [Silkwood’s] death isn’t an issue, but fifteen minutes after she left” a nighttime union meeting for a meeting with the investigative reporter from The
New York Times
, allegedly carrying evidence of Kerr-McGee’s nefarious practices, “she was dead.” 61 Although the direct cause of Silkwood’s death in the car accident is not an issue in the trial, it
is
potentially important to the narrative logic of Spence’s counterstory. The narrative subtext is unmistakable: Kerr-McGee clearly had a motive to do whatever was necessary to stop Silkwood. This certainly provides a stronger and more satisfying story logic than Kerr-McGee’s defensivespeculations that Silkwood poisoned herself to discredit Kerr-McGee. (“Did she know too much? … She knew enough to bring this whole mess to an end.”) 62
I. Rebuttal Argument: The Final Confrontation
    I, during the recess, wondered about whether there is enough in all of us to do what we have to do. I’m afraid—I’m afraid of two things: I’m afraid that you have been worn out, and that there may not be enough left in you to hear, even if you try, and I know you will try, but I know you are exhausted; and I’ve been afraid there isn’t enough left in me, that my mind isn’t clear and sharp now, and that I can’t say the things that I need to say, and yet it has to be done, and it has to be done well.… And it is the last time that anybody will speak for Karen Silkwood. And when your verdict comes out, it will be the last time that anybody will have the opportunity that you have, and so it is important that we have the strength and power to do what we need to do
. 63
    Spence begins his rebuttal with a rhetorical framework identical to the initial argument. First, he reestablishes his dialogic relationship to the jury. Then he reaffirms the historical singularity of the
Silkwood
case: “You know, history has always at crucial times reached down into the masses and picked ordinary people and gave ordinary people extraordinary power.” 64 There are retellings of the legal anecdotes (“the lion gets away”—plaintiff’s theory of strict liability—and “the mud springs”—defendant’s theory of obfuscation and slander). This time, Spence tactically adds an admonition: “I don’t want you jumping in mud springs.… [I]t is unnecessary for you to decide how plutonium escaped from the plant, how it entered her apartment, or how it caused her contamination, since it is a stipulated fact that the plutonium in Karen Silkwood’s apartment was from the defendant’s plant.” 65 Although the defendant has the burden of proving how “the lion got away,” and it is