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

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 6–7 (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).