My favorite nonfiction writer, John McPhee, has written long-form features for The New Yorker on topics as varied as the history of oranges, New Jersey’s Pine Barrens, and the United States Merchant Marine. In each case, McPhee immersed himself in his subject matter, paring down his vast research into a relatively thin volume that is dense yet easy to read thanks to his well-structured, character-filled narratives. John McPhee is a master storyteller.
Great trial lawyers are master storytellers, too. An effective litigator can delve into a complicated subject and craft a narrative that is thorough yet accessible to a jury. In contrast to writers, however, trial lawyers face an adversary—an advocate on the opposing side who is crafting a counter-narrative using roughly the same set of facts. In this light, the courtroom becomes an arena for a high-stakes contest of competitive creative nonfiction.
Late in his storied career, McPhee wrote Draft No. 4, a book on creative nonfiction writing. His insight into the writing process includes lessons that translate nicely to the art of trial advocacy. Nonfiction writers, like trial lawyers, are confined to the facts. The opportunity for creativity emerges from their discretion over which facts they stress, determining the order in which those facts are presented, and choosing the context in which the facts are shown. “Creative nonfiction is not making something up,” McPhee writes, “but making the most of what you have.”
The process for both writers and litigators begins with discovery, or what a writer colloquially calls “research.” When McPhee launched his exploration into the citrus industry for his 1966 series Oranges, he visited a University of Florida “citrus experiment station” where he found “a citrus library of a hundred thousand titles,” including papers from scientific journals, six thousand books, and hundreds of doctoral theses. He realized he had much more to explore than he first imagined. Before he completed his research, McPhee visited several orange groves, toured an orange juice concentrate plant, and skimmed the treetops in a helicopter with legendary orange baron Ben Hill Griffin Jr.
As any plaintiff ultimately learns, the discovery process can take a long time. At the beginning of the process, you don’t know what you don’t know. As McPhee discovered when he arrived at the citrus experiment station, there might be far more to your subject than you anticipated. McPhee’s editor at The New Yorker, the legendary William Shawn, understood this. He afforded his writers considerable grace during this “discovery” process. “It takes as long as it takes,” Mr. Shawn said. With diligent perseverance, when all the threads have been followed, the process begins to wind down. McPhee references sentiments from writers such as Mark Singer and Brock Brower when he writes, “You know you have enough material when you meet yourself coming the other way.”
Next comes the task of culling through discovery, tossing useless information, and focusing on key documents relevant to the final product—whether it’s a trial, an article in The New Yorker, or a lowly Substack post. “Writing,” McPhee suggests, “is selection.” That means “pairing away the extraneous, reducing and refining until all that was left was what was needed.”
Key to the process is physically writing or typing out the notes that survived the selection process. “The note typing could take many weeks,” McPhee writes, “but it collected everything in one legible place, and it ran all the raw material in some concentration through the mind.”
Having all the notes typed up means you can print them out, categorize, and reorganize them. McPhee describes how he would “go at a copied set [of notes] with scissors, cutting each sheet into slivers of varying size.”
“One after another, in the course of writing,” McPhee writes, “I would spill out the sets of slivers, arrange them ladder-like on a card table, and refer to them as I manipulated the Underwood.” The process helps reveal a new structure for your arguments, presenting key facts thematically. This is the creative aspect of nonfiction writing: developing the theme by crafting a narrative structure with the facts on hand. What you keep in, what you leave out, and the order in which you present it makes a big difference in how the audience receives your story.
At trial, this narrative structure comes to life through the opening statements and closing arguments. The opening statement, if executed well, provides the jury with a road map for how to interpret the testimony and evidence. The closing argument will collect the best of the evidence as it came out during the trial, reorder it back into the structure proposed in the opening statements, and conclude with an appeal and call to action. In some of the best closing arguments I’ve seen, the trial lawyer reminds the jury that they have the unique opportunity to write the conclusion to the drama that unfolded before them over the previous days or weeks. They hold the power to decide how the story ends.
It’s a well-known trope that at trial, the side with the best story wins. While having good facts certainly helps, the way those facts are organized into a cohesive narrative can have an outsized impact on how the jury assigns weight and credibility to the testimony and the evidence.
The story the lawyer presents in closing arguments may need to change depending on how the trial unfolds, what the witnesses say on the stand, and what evidence is ultimately introduced. If they're any good, the advocate on the other side will have spun a counter-narrative, which may impact how their opponent's story must be told. There is an element of improvisation demanded by trial, and this is where all the preparation—all the copying, selecting, reducing, refining, ordering, and restructuring—really pays off.
McPhee quotes a passage from Ernest Hemingway's 1932 non-fiction account of bullfighting, Death in the Afternoon, which suggests, “If a writer of prose knows enough about what he is writing about, he may omit things that he knows and the reader, if the writer is writing truly enough, will have a feeling of those things as strongly as though the writer had stated them.” Hemingway sometimes called this the “theory of omission.” What it means for the lawyer is they don’t have to get everything perfect. A detail can be dropped here and there, but if the narrative is strong and apparent, the thesis will shine through, providing the jury with a clear structure to guide their deliberations.
I’ve always been amused that we call the process of crafting narratives “writing.” Writing is merely the physical act of putting words on a page, and it hides all the work that led up to that point. In Nothing Like It in the World, historian Stephen Ambrose writes about the creation of the Transcontinental Railroad, describing all the efforts made before workers placed the first length of rail: surveying the routes, securing financing, acquiring the land, cutting through forests, tunneling through mountains, building bridges, and making the grade. An author can only write after all the other work is done, and a lawyer can only try a case after the matter has been properly worked up. Properly working up a case requires a lawyer to craft a good story that incorporates the facts of the case. While the facts may be immutable, as John McPhee demonstrates, there are boundless creative opportunities to make the most of what you have.
Theory of ommission. Brilliant.