I left off last time with the suggestion that, in considering closing arguments, “inevitability” is key to their effectiveness. In recent times, very few (especially civil) cases get to trial. The ones that do—i.e., those that aren’t resolved by plea agreement, settlement, or pre-trial motion—do so because the facts are in dispute, the facts may or may not constitute a violation, or the appropriate remedy is in doubt. For example, defendants accused of violating the Sherman Act may dispute that they agreed to fix prices, or they might argue that no matter what they did, they didn’t cause the plaintiff’s injuries, or the parties may have wildly different views on what constitutes a reasonable amount for damages. By nature, then, assuming rational litigants and lawyers, a case going to trial has no inevitable conclusion. Making the theory of a case appear inevitable is the best we can hope for.
Narrative inevitability is of course a construction because narrative itself is a construction—the enchainment of particulars selected from a host of particulars. And in the context of closing argument, the selection of particulars is an exercise in both authorship and advocacy that results in what Peter Brooks and Carlo Ginzburg more generally call a “retrospective prophecy”—”a construction of the story of the past by way of its outcome, what it was leading to.” This retrospective prophecy, this story of a past event, will have persuasive force if the lawyer—in the role of detective—performs a retracing of some party’s steps to an end that has been in sight since the beginning (e.g., the dead body). A gifted lawyer is able to perform this task because he is Holmes and Watson (Doyle, actually)—that is, he locates particulars and then enchains them into a story that, he hopes, will offer the most plausible account of what happened (how the victim died, why the plaintiff’s business failed, or why a class member’s stock price dropped precipitously, etc.).