Stranger than Fiction: How Lawyers Can Accurately and Realistically Tell a True Story by Using Fiction Writers' Techniques that Make Fiction Seem More Realistic than Reality

Author:Cathren Page
Position:Tenured Associate Professor of Law, Barry University.
Pages:907-944
 
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Stranger than Fiction: How Lawyers Can Accurately
and Realistically Tell a True Story by Using Fiction
Writers’ Techniques that Make Fiction Seem More
Realistic than Reality
Cathren Page*
TABLE OF CONTENTS
Introduction .................................................................................. 908
I. Brief Overview of Applied Legal Storytelling ............................. 911
II. Verisimilitude Explained .............................................................. 912
III. Examples of Verisimilitude Analyzed ......................................... 914
A. Verisimilitude in Fiction ........................................................ 918
1. How Novelist Jo Walton Used Popular References
and Concrete Details to Establish a Sense of Reality in
the Contemporary Realistic Fiction/Fantasy Blend
Novel, Among Others ...................................................... 919
2. How the Novel Doomsday Book Blends Concrete
Details from Historical Fiction with Science
Fiction/Fantasy to Create a Sense of Reality................... 923
3. How Novelist M.T. Anderson Uses Not Just Historical
Details but “False Documents” to Establish a Feeling of
Reality in The Astonishing Life of Octavian Nothing ...... 924
B. Verisimilitude in Law ............................................................ 927
1. How the Attorneys for Hameed Darweesh Folded
Concrete Details into their Petition in Darweesh v. Trump
to Breathe Reality into the Life Risks Mr. Darweesh Took
to Help the United States ................................................. 929
2. How the Attorneys in Foster v. Chatman Used Not Just
Concrete Details but Also Real Documents, Much Like the
“False Documents” in Octavian Nothing, to Create a
Sense of Reality in Their Statement of the Case to the
Supreme Court of the United States ................................ 932
3. How Prosecutors Weaved Concrete Facts into the Opening
Statement in the Trial of Doctor Conrad Murray for the
Death of Michael Jackson to Create a Feeling of
Verisimilitude .................................................................. 936
908 LOUISIANA LAW REVIEW [Vol. 78
4. How the Prosecution in California v. Manson Used Not
Just Concrete Details but Also Popular Culture References
Like Those in Among Others to Breathe Reality into the
Summation of an Otherwise Strange Case ...................... 939
Conclusion .................................................................................... 944
INTRODUCTION
How many people would believe it if someone walked up to them on
the street and said, “There is a place where it rains diamonds from the
sky?” It sounds like a fairy tale or the rantings of the mentally ill.
According to a NASA scientist, this story actually is true.1 Dr. Kevin
Baines announced findings that it rains diamonds on Jupiter and Saturn.2
Yet without this context, the notion sounds ridiculous. The average
audience likely would not believe the statement on its own.
In contrast, an audience may be more eager to suspend their disbelief
as they read the excerpt below from the classic children’s novel, The Lion,
the Witch, and the Wardrobe:
“This must be a simply enormous wardrobe!” thought Lucy, going
still further in and pushing the soft folds of the coats aside to make
room for her. Then she noticed that there was something
crunching under her feet. “I wonder is that more moth-balls?” she
thought, stooping down to feel it with her hand. But instead of
feeling the hard, smooth wood of the floor of the wardrobe, she
felt something soft and powdery and extremely cold. “This is very
queer,” she said, and went on a step or two further.
Next moment she found that what was rubbing against her face
and hands was no longer soft fur but something hard and rough
Copyright 2018, by CATHREN PAGE.
* Tenured Associate Professor of Law, Barry University. Special thanks to
Dean Leticia Diaz for her continued scholarship suppo rt, Assistant Dean Kelli
Murray for her support and feedback, Faculty Development Chair Professor Eang
Ngov for scholarship resources, Professor Chris Rideout for a fascinating
discussion on mimesis, character, and verisimilitude, and my research assistants,
Amanda Buschbom, DeShayla Strachan, Natasa Glisic, and Chris Conrad, who
tracked down so many obscure sources and scrutinized details.
1. James Morgan, ‘Diamond Rain’ Falls on Saturn and Jupiter, BBC NEWS
(Oct. 14, 2013), http://www.bbc.com/news/science-environment-24477667 [https:
//perma.cc/N9TF-EZP2].
2. Id.
2018] STRANGER THAN FICTION 909
and even prickly. “Why, it is just like branches of trees!”
exclaimed Lucy. And then she saw that there was a light ahead of
her; not a few inches away where the back of the wardrobe ought
to have been, but a long way off. Something cold and soft was
falling on her. A moment later she found that she was standing in
the middle of a wood at night-time with snow under her feet and
snowflakes falling through the air.3
Though the book transports the character from a wardrobe into a wintery
fantasy land, so far as contemporary science indicates, that is impossible.
Still, many readers suspend their disbelief4 as they read passages like this
one. They know that the story is not real, but they set this knowledge aside
and immerse themselves in a story that feels real.
Some people may be less willing to believe the story about the
diamonds and more willing to suspend their disbelief temporarily when
they read a fiction novel like The Lion, the Witch, and the Wa rdrobe. After
all, “[t]ruth is stranger than fiction.”5
Telling a true story is not enough to persuade a judge or jury. The story
must also seem true. It must have verisimilitude. Verisimilitude is “the
appearance of being true or real even when fantastic.”6 Even with a non-
fiction story, it is not enough that a story is true; it must also seem true. To
foster a sense of truthfulness, lawyers can use the techniques that fiction
writers employ to establish verisimilitude in stories that might otherwise
seem impossible or unbelievable.
In the passage above from The Lion, the Witch, and the War drobe, the
author achieves verisimilitude by lacing the passage with select, concrete
details. These details should not be fictional. Lawyers can use real details
on the record in a legal case to achieve a sense of reality; in fact, one of
the ways that even fiction writers achieve a sense of reality is by using real
details. Thus, legal narratives also can convey this sense of verisimilitude
or truthiness when the lawyer laces concrete factual details into a
3. C.S. LEWIS, THE LION, THE WITCH, AND THE WARDROBE 67 (1950).
4. See JOHN GARDNER, THE ART OF FICTION 22 (Vintage Books 1991)
(mentioning the suspension of disbelief that accompanies verisimilitude).
5. Mar k Twain>Quotes> Quotable Quote, GOODREADS, http://www.good
reads.com/quotes/4650-truth-is-stranger-than-fiction-but-it-is-because-fiction (last
visited Jan. 21, 2018) (quoting Mark T wain) [https://perma.cc/E9M9-6K65]; see
also ORHAN PAMUK, THE NAÏVE AND SENTIMENTAL NOVELIST 3 (Vintage Int’l
2010) (discussing how sometimes fiction may seem more real than reality).
6. J.A. CUDDON, DICTIONARY OF LITERARY TERMS & LITERARY THEORY
755 (5th ed. 2013).

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