Book Excerpt

Here is an excerpt from the book:

My goal in the following chapters is to show litigators, legal counselors, and judges exemplifying the trickster approach to the practice of law. I start with litigators. Admittedly it’s the easiest case for my thesis, since trial lawyers are well known for their clever trial strategies and quickness of wit.

In the 1970s, a highly publicized lawsuit was brought against the Kerr-McGee Corporation, a company that operated a plant in Crescent, Oklahoma, which made plutonium-uranium fuel rods for use in nuclear reactors. The suit alleged that an employee at the plant, Karen Silkwood, had been contaminated by exposure to radiation in the course of her job grinding and polishing pellets that would be used in the fuel rods. Silkwood, who was also a union representative active in employee safety issues, was killed in a car crash one morning as she drove to meet a New York Times reporter to discuss safety issues at the plant.

Silkwood’s estate was represented by Wyoming “cowboy” trial lawyer Gerry Spence. Spence’s final argument to the jury in the Silkwood v. Kerr-McGee case is an excellent example of a trickster lawyer at work. Spence could have framed his argument in terms of logic: here is the applicable law, here are the relevant facts, and here is the conclusion you should draw.

Spence took another tack altogether. He created a multilayered narrative that sounds more like a plot for a Hollywood movie than a legal theory. He created a human drama that not only portrayed Silkwood as the fallen hero and Kerr-McGee as the callous villain, but also included a role for the jury members themselves to redeem Silkwood’s death.

Phillip Meyer, in his excellent book Storytelling for Lawyers, shows us that Spence’s final argument included three independent but related narratives. The first tells us what happened at the Kerr-McGee plant in the early 1970s. Spence begins his argument by reminding the jury of the sad state of affairs that existed at the Kerr-McGee plant before Karen Silkwood arrived. He does this by summarizing the testimony of Kerr-McGee officials and former employees. Remember that Spence had two and a half months of testimony to choose from in crafting his story. Knowing that an emotionally moving story needs a villain as much as it needs a hero, he chose testimony that tended to stress the opposition between the “evil” corporation and the “innocent” workers it harmed.

Mr. Utnage, the man who designed the plant, is a good example of a “company” witness. Here is Spence’s description of Mr. Utnage.

I want to talk about the design of the plant very quickly. It was designed by Mr. Utnage. He never designed any kind of plant…And I confronted him with scores of problems—you remember those 574 reports of contaminations—they were that thick (indicating), in two volumes…I asked him about a leak detection system. “We do not need a leak detection system,” he said. “We can see it. We can see it.” Here is the man who told you that as long as you can’t see it, you’re safe. And we know that the amount of plutonium, a half of a gram of plutonium, will contaminate the whole state of Oklahoma, and you can’t see it…He sat there on the stand under his oath and looked at every one of you under his oath and he said that plutonium has never been known to cause cancer. Well, now he either lied, or he bought the company lie and didn’t know. But he was the man who designed the plant. You wouldn’t have to design a very good plant if you didn’t think plutonium caused cancer, it wouldn’t bother you. You wouldn’t work very hard. There wouldn’t be much to worry about.

Spence also reminds the jury of “young Apperson,” who he sees as one of the “innocent” workers duped by Kerr-McGee:

Do you remember young Apperson sitting there (indicating)? You remember his open face—I liked him a lot—an open, honest boy—blond curly hair—you remember him, two and a half months ago. He said “thirty percent of the pipes were not welded when I came, when the plant was opened. Thirty percent of the pipes were welded after the plant was in operation, and I was there, and I saw those old welds.” And he wasn’t a certified welder himself, and he was teaching people in an hour or two to be welders themselves—not a certified welder on the job. “There were things leaking everywhere,” he said. You remember how he was describing how he was there welding the pipe and they jerked the oxygen out, and he had to gasp for air—the contamination—to survive the moment?

The stage is now set for the hero’s entrance. Spence wants the jury to know two things about Karen Silkwood: she was an “ordinary” person much like themselves, but she was also a “special” person, because she “cared.”

She was a happy child, a good child, she was correctly raised by the church, and she loved church, and she was a scholarship student, and she was a chemistry major. She was bright, she could understand. But, more than anything else, she cared. At that corporation plant there was somebody who cared, and it was Karen Silkwood. Somebody who cared a lot about others.

Spence then played tape recordings of Silkwood’s voice for the jury, as she described her activities at the plant.

Ah, in the laboratory we got eighteen- and nineteen-year-old boys, you know, twenty and twenty-one, I mean, and they didn’t have the schooling so they don’t understand what radiation is. They don’t understand…they don’t understand.

Finally Spence answers what he sees as the crucial question that faces the jury—“who was Karen Silkwood?”

Who was she? I say she was a prophet, an ordinary woman who cared, and could understand, doesn’t have to be anything other than an ordinary woman who cared and understood in order to be a prophet. I don’t mean she’s anything, you know, biblical—I mean, she was an ordinary person who cared, and she prophesied this way: “If there is something going on”—this is an actual quote—“If there is something going on, we’re going to be susceptible to cancer, and we’re not going to know about it for years.” She says this to you, ladies and gentlemen. “Something has to be done.”

Both Spence and the jury knew that Silkwood died in a car crash on her way to meet a New York Times reporter with the express purpose of getting something done.

Spence’s second narrative moves from the events that precipitated the trial to what transpired at the trial itself. He spends relatively little time reviewing the facts necessary to his theory of the case, because he knows the applicable law favors him. The court had decided that the case was one of “strict liability”: if Kerr-McGee caused Silkwood’s contamination, it was legally liable, even if it could show it was not negligent in doing so. Spence reduces the law to a catchy phrase: “If the lion (the plutonium) got away, Kerr-McGee (the owner of the plutonium) must pay.”

That said, there was only one legal theory that could save Kerr-McGee. If Kerr-McGee could prove that Silkwood voluntarily contaminated herself, it would provide a winning affirmative defense to her claim. Unfortunately, from Kerr-McGee’s perspective, there was no hard evidence to show such voluntary contamination. But the defense team still decided to give it a try by pointing out that there was radioactive material found in Silkwood’s apartment, which she might have smuggled out of the plant. But how would she smuggle it out? In his opening statement to the jury, Kerr-McGee’s chief attorney, William Paul, had tried to suggest an answer to that question by pantomiming Silkwood putting the plutonium into her jacket pocket. However, that still left the question of motive. Why would a young, healthy woman, aware of the danger of contact with plutonium, contaminate herself? The only theory Kerr-McGee could offer was that it was an act of revenge against Kerr-McGee.

Law is often a game of wits. Two lawyers meet, each trying to outsmart the other. Kerr-McGee’s counsel had decided to base his defense on a personal attack on Karen Silkwood. But Spence immediately recognized that, in doing so, Paul had opened up two opportunities for Spence to add to his portrait of the villainous corporation.

First, he can point out that Mr. Paul is attacking the reputation of a “good” girl who is not alive to defend herself. And second, since Mr. Paul has had to resort to speculation and innuendo to make his case that Silkwood intentionally exposed herself to radiation as an act of revenge against the corporation, Spence can claim the right to speculate himself about the answer to a question he knows is on the jury’s mind. How did Karen Silkwood die?

Mr. Paul…stood up here and pointed his finger toward Karen Silkwood…Mr. Paul doesn’t have the right to come into court and say “I think this happened” and “I think that happened.”…And to take a whole series of unrelated events and put them together…and to mislead you…But if Mr. Paul wants to play guess-um—that is, point the finger…I am willing to play that game. But, when I do it, I want you to know it isn’t right, because I can’t prove that any more than they can prove it.

After this ritualistic admission that he has no proof to support his charges, Spence tells the story he really wants the jury to hear, the one that is not “legally” relevant—the story of who killed Karen Silkwood. Did Kerr-McGee have good reason to see Silkwood dead?

I can give you motive. What was the motive for them to do that? She was a troublemaker. She was doing union negotiations. She was on her way—she was gathering documents—every day in that union, everybody in that company, everybody in management knew that…She knew too much. What would she do if she had gotten to the New York Times?

One might ask why Spence was so interested in the question of how Silkwood died, since it was formally not an issue in the case. Kerr-McGee was liable for her contamination whether or not they were involved in her death. But Spence knew that while the circumstances of her death were not “legally” relevant, how the jury pictured Silkwood’s death would play a large role in their determination of damages, especially exemplary or (as they are commonly called) “punitive” damages. By this point in the trial, everyone must know that the only issue in doubt is the amount of damages the jury will award.

Now the stage is set for the concluding portion of Spence’s narrative. Let’s review what he has set out up to this point. In the first narrative, Spence introduces the villain, Kerr-McGee, a corporation that, at a minimum, is careless in its safety standards and insensitive to the health dangers its innocent employees face. Spence also introduces the hero, Karen Silkwood. Karen is a “good girl” and an “ordinary person,” but also someone who “cares about people.” When she discovers that Kerr-McGee has not informed the “young boys” of the dangers they face, she decides “something has to be done.” This transforms her from ordinary bystander to hero. She compiles evidence to show to a New York Times reporter, but is mysteriously killed in a car crash shortly before the scheduled meeting.

Spence then tells the story of the trial itself. Spence uses Kerr-McGee’s attempt to blame Silkwood for her own contamination as a springboard to add to his own story of villainous corporation versus courageous hero. He suggests to the jury that there is good reason to believe that Silkwood was murdered by Kerr-McGee because the corporation feared what would happen if she ever did talk to that reporter.

Now we come to the third and concluding narrative. Here, the time is no longer the past, and the hero is no longer only Karen Silkwood. The time is the present and another hero appears—the jury, “ordinary” citizens who, like Karen, “care.” They now have the opportunity to make sure that Karen’s death was not in vain. They can redeem Karen’s death by delivering an award that will make Kerr-McGee pay for her death and make the nuclear industry take action to prevent future disasters.

I think it is worthwhile here to point out the constantly shifting roles that Spence plays in the trial. Sometimes he plays the role of law-explainer. (“If the lion got away, Kerr-McGee must pay.”) Other times he functions as an informal witness who tells the jury of possibilities that are emotionally powerful, even if unproven or legally irrelevant. Now, in the third narrative, he becomes the jury’s counselor, who understands their hopes and fears and helps them do what they know in their hearts is right. In fact, by the end of his plea, Spence is no longer addressing the jury as “you.” He speaks about the noble task “we” must accomplish.

But first he starts his final plea, not with a call for justice, but a meditation about fear, his fear and the jury’s fear.

I, during the recess, wondered 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 am afraid you have been worn out, and there might not be enough left in you to hear, even if you try, and I know that you will try, but I know you are exhausted; and I’ve been afraid there isn’t enough left in me, that my mind is not clear and sharp now, and that I can’t say the things I need to say, and yet it has to be done, and it has to be done well…And this is the last time that anyone will speak for Karen Silkwood. And when your verdict comes out, it will be the last time anybody will have the opportunity that you have, and it is so important that we have the strength and the power to do what we need to do…You know history has always at crucial times reached down to the masses and picked ordinary people and gave ordinary people extraordinary power.

Then suddenly his fear turns into righteous anger.

I want to tell you something about myself. I have been in courtrooms in Wyoming, little old towns in Wyoming, five thousand there. I grew up in Riverton, Wyoming, five thousand people there—Dubois, Rock Springs. I’ve been all over. I’ve been the county attorney, and prosecuted murderers—eight years I was a prosecutor—and I prosecuted murderers and thieves, and drunk and crazy people, and I’ve sued careless corporations in my life, and I want to tell you I have never seen a company who represented to the workers that the workers were cheated out of their lives. These people that were in charge knew of plutonium. They knew what alpha particles did. They hid the facts, and they confused the facts, and they tried to confuse you, and they tried to cover it…You and I know what it was all about. It was about a lousy $3.50 dollar-an-hour job. And if those people knew that they were going to die from cancer thirty or forty years later, would they have gone to work? The misrepresentations stole their lives. It’s sickening. It’s willful. It’s callous…

And then he tells the jury that it is not only their responsibility, but also their privilege, to write the proper ending to the Karen Silkwood story.

What is this case about? It’s about Karen Silkwood, who was a brave, ordinary woman who did care. And she had something to tell the world, and she tried to tell the world. What was it that Karen Silkwood tried tell the world? That has been left for us to say now. It’s for you the jury to say for her. What was she trying to tell the world?

I think she would say, “Brothers and sisters, they were just eighteen- and nineteen-year-olds. They didn’t understand. There wasn’t any training. They kept the dangers a secret. They covered it with word games and number games…” And she would say “Friends, it has to stop here today. It has to stop in Oklahoma City today.”

The lawyer spoke, and the jury acted. After deliberations the jury awarded the Silkwood estate $500,000 compensatory damages for personal injury; $5,000 compensatory damages for property damage; and $10 million for exemplary, or punitive, damages.

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