Storytelling for Lawyers by Philip Meyer

imaginative attention of the jury. After multiple “false starts,” 8 Spence presents the plaintiff’s legal “theory of the case”; he spins the law into a careful anecdote. The plaintiff’s legal theory was strict liability, which meant that Spence had to convince the jury only that Silkwood was contaminated by the plutonium that Kerr-McGee produced. The judge has bought Spence’s legal theory, and it will be presented in instructions (and a verdict form) given to the jury: legally, Karen Silkwood’s estate does not have to prove how she became contaminated, only that she was contaminated by the plutonium produced by Kerr-McGee; the only “story” that will relieve the defendant of liability is if Silkwood intentionally removed the plutonium from the plant and contaminated herself (even a story of Silkwood’s own negligence at the plant contaminating herself with plutonium will not suffice).
    Nevertheless, it is a legal issue that is potentially complex and confusing for the jury, as the judge’s jury instructions include burdens of proof, elemental statements of the law regarding strict liability, and even a multipart verdict form. But Spence’s narrative “hook” translates this legal complexity into a simple anecdote, a straightforward ministory that fits neatly within the larger story of the case:
    Well, we talked about “strict liability” at the outset, and you’ll hear the court tell you about “strict liability,” and it simply means: “If the lion got away, Kerr-McGee has to pay.” It’s that simple—that’s the law. You remember what I told you in the opening statement about strict liability? It came out of the Old English common law. Some guy brought an old lion on his ground, and he put it in a cage—and lions are dangerous—and through no negligence of his own—through no fault of his own, the lion got away. Nobody knew how—like in this case, “nobody knew how.” And, the lion went out and he ate up some people—and they sued the man. And they said, you know: “Pay. It was your lion, and he got away.” And the man says: “But I did everything in my power—I had a good cage—had a good lock on the door—I did everything thatI could—I had security—I had trained people watching the lion—and it isn’t my fault that he got away.” Why should you punish him? They said: “We have to punish him—we have to punish you—you have to pay.” You have to pay because it was your lion—unless the person who was hurt let the lion out himself. That’s the only defense in this case: unless in this case Karen Silkwood was the one who intentionally took the plutonium out, and “let the lion out,” that is the only defense, and that is why we have heard so much about it.
    Strict liability: “If the lion gets away, Kerr-McGee has to pay,” unless Karen Silkwood let the lion loose. What do we have to prove? Strict liability. Now, can you see what that is? The lion gets away. We have to do that. It’s already admitted. It’s admitted in the evidence. They admit it was their plutonium. They admit it’s in Karen Silkwood’s apartment. It got away. And, we have to prove Karen Silkwood was damaged. That’s all we have to prove. 9
    In contrast, the defendant must provide an affirmative defense and prove by a preponderance of the evidence that Karen Silkwood intentionally took the plutonium from the plant to her home and poisoned herself. Rather than front-loading the legal explanation or filling the space with an abstract argument explaining how Kerr-McGee has failed to meet its burden, Spence employs a second parallel ministory to characterize the evidence presented by defendant’s attorneys at trial and, more important, to provide a narrative framework for the defendant’s theory of the case: he