Rural Noir, Urban Drinks, Shape-Shifting Trial

We start with an interview with crime novelist Wesley Browne, then move to cocktails, and finish with how archetypes help you at a white-collar trial.

Crime Fiction

Novelist Wes Browne is an extraordinary writer of Kentucky rural noir whose most recent work is They All Fall The Same. In the words of New York Times bestselling author S.A. Crosby, “Wes Browne takes you on a walk through the Kentucky hills and down dusty back roads where justice, revenge and regret are uneasy allies.” Wes is also a good friend and generously sat down with White Collar Wire.

Legal Experience and Fiction

WCW: You spent years in the Appalachian criminal justice system as both prosecutor and defense attorney. How did that experience shape—or not shape—your fiction? Which was better: being a defense lawyer or being a prosecutor?

WB: Doing criminal work for twenty-five years has taught me a lot about human nature. I handled divorces for a few years and that was pretty enlightening as well. I’ve also spent years inside courthouses all over rural Kentucky talking fact patterns and the law with other lawyers, and judges, and people in the system. All that stuff gets baked into your psyche and ends up in your writing.

I’ve enjoyed being a defense lawyer the most. I’ve done that for the vast majority of my career. It’s the most natural fit. To defend people, you have to be empathetic. That’s a necessary requirement to be a writer too, so those two things feed each other.  

WCW: They All Fall the Same has been praised on many counts, including its authentic details of the criminal justice system. How difficult is to the render the “lawyer stuff” for a lay audience?

WB: Honestly, I don’t delve into the technical nuances of the system very often. When I do, I describe everything as simply and as clearly as I can, which is something I always tried to do with my clients. The details of the criminal system I draw from the most are the behaviors and tendencies of the people in it. To me, that’s what’s most interesting.

Publisher’s Weekly mentioned that I included a detail about businesses putting blacklights in their bathrooms so intravenous drug users can’t see their veins to shoot up. I didn’t learn about that in a courthouse. I learned about that in a gas station in a small town where I’d been to court.

WCW: S.A. Cosby compared your work to a “strong shot of high quality bourbon.” What’s your favorite bourbon(s)? 

WB: There are a lot I like, some of which are hard to get. My old reliable is Woodford Reserve.

Craft and Regional Identity

WCW: Donald Ray Pollock noted that Hollywood will come calling for They All Fall the Same. Some writers have a purposefully “cinematic” approach when they write. Is that you? And, will you get a cameo? (I’m thinking James Dickey in Deliverance).

WB: I sure hope Donald’s right, but I’m not counting on it. I do write with cinematic intent though. Specifically, I wrote They All Fall the Same to read like a streaming series. My intent was to time out all the smaller story arcs so that readers could binge the book in episodes like they would a limited series, and that they continually want to see what’s next.

As good as Dickey was in Deliverance, they eventually kicked him off the set because he badgered the director and the actors. I hope that wouldn’t be me. He played a country lawman, and I think I could do that too. Maybe one of the guys from Jackson County.

WCW: Some reviewers have noted that your work has echoes of the Hatfields and McCoys. How do contemporary crime families in Appalachia differ from these historical predecessors?

WB: The funny thing about that is, the similarities didn’t occur to me until after the book was done. Kelly J. Ford and George Singleton both mentioned it. It’s been a good marketing point, but it wasn’t intentional. 

Family is incredibly important in Kentucky, so you do see some feuds and grudges play out. I’ve never actually seen two organized crime families go at it. They’re typically more concerned with law enforcement. The closest I’ve seen was when two exterminator families got into a violent rivalry related to the termite business.

Genre and Influences

WCW: You’ve joined a strong tradition of rural noir authors, with comparisons to Eli Cranor and others. Which writers or books shaped your understanding of what rural crime fiction set in could be? Any “ah-hah” moments when you realized, That’s it, that’s the road I am going to travel as genre or theme?

WB: Ron Rash’s The World Made Straight was one of the first rural noir books that really grabbed me. Silas House told me to read it after I took a writing class from him. He also pushed me toward Larry Brown, Tom Franklin, Donald Ray Pollock, Daniel Woodrell, and William Gay. They all wrote dark stories about rural settings. I ate them up.

I read all over the map, and I have a lot more influences than just them, but those are the writers whose work most set me on the path I took with my first two books.

Looking Forward

WCW: You’re on a roll. What about future projects?

WB: I’ve got another novel done. The current title is Twentynine Palms Highway. I call it my “Elmore Leonard pivot” because it’s a big departure from my last two. It’s set out west in the California and Nevada Desert. Leonard wrote books set all over, but he did a lot of research. I’ve done the same.

Twentynine Palms Highway is about a former Michigan State Police recruit who joins a high-end theft ring in Las Vegas that eventually lands him probation. He falls for a woman who invites him to a wedding in Twentynine Palms, California, but he’s not allowed to leave Nevada. He goes anyway and ends up crossing his old boss while he’s there. So now he’s on the run from an organized crime figure and a probation officer, but he’s also in love.

Good books.

WCW: What are you reading now?

WB: managed to land an advance copy of S.A. Cosby’s King of Ashes. We’re appearing together in Richmond, Virginia in April and we’re going to talk about it. So far, wow.

I’m also almost done reading Linda Michel Cassidy’s new short story collection When We Were Hardcore. It’s brilliant.

Cocktails

Woe to those who rise early in the morning, that they may run after strong drink . . . .

Isaiah 5:11

Two recent drinks to enjoy.

According to Punch, the “1910” is a “mezcal– and Cognac-based spin on the Manhattan [that] takes its name from the year of the Mexican Revolution and nods to the 1919, another house cocktail at Drink, named after the year of Boston’s Molasses Flood.. . . .”

3/4 ounce mezcal
3/4 ounce Cognac
1/2 ounce maraschino liqueur
1 ounce Punt e Mes
2 dashes Peychaud's bitters
Garnish: orange twist

DIRECTIONS
Combine all ingredients in a mixing glass over ice and stir until chilled.
Strain into a chilled coupe or cocktail glass.
Garnish with an orange twist.

As noted by drinks writer Robert Simonson:

A drink named after a gun. A bourbon called Bulleit. A garnish set on fire.

With such sensational elements, perhaps it was pre-ordained that the revolver, a Manhattan variation created by San Francisco, Francisco bartender John Center in 2004, should attract attention. But it wasn’t as simple as that. That would be a number of serendipitous steps between the drinks, creation, and it’s subsequent fame.

Robert Simonson, Modern Classic Cocktails

The specs (also from Punch):

2 ounces bourbon, preferably Bulleit
1/2 ounce coffee liqueur [I like Jumping Goat from New Zealand]
2 dashes orange bitters
Garnish: flamed orange twist

DIRECTIONS
Combine all ingredients in a mixing glass.
Add ice and stir until chilled.
Strain into a chilled coupe or cocktail glass.
Garnish with a flamed orange twist.

Law

The fundamentals of storytelling are also the fundamentals at trial. For Law360, I recently wrote a piece on the shapeshifter archetype at trial. Here is the full article below.

White Collar Archetypes: Wrangling The Shape-Shifter

By Jack Sharman

Jack Sharman

This article is part of a quarterly column discussing how defense attorneys can learn from the eight character archetypes of the classic “hero’s journey” identified by screenwriter and author Christopher Vogler, and how to apply these archetypes to white collar trials. This installment addresses the “shape-shifter” — documents and witness testimony that can change shape in the jurors’ eyes, presenting both challenges and opportunities for defense counsel.

A shape-shifter is a character who changes constantly from the hero’s point of view. Landmark examples include characters played by Glenn Close in “Fatal Attraction,” Kim Novak in “Vertigo” and Michael Douglas in “Romancing the Stone.”

Among this year’s Oscars nominees, both “Conclave” and “The Substance” — two very different movies — created drama with shape-shifting characters.

In fiction and film, the shape-shifter sometimes literally changes shape, like the “salt vampire” in the first episode of the original “Star Trek” television series.

We can skip salt vampires in this article, but the shape-shifter appears frequently in white collar trials, both as live witnesses and deceptive data.

Although the shape-shifter archetype is a challenge for defense counsel, it can also open new opportunities at trial.

What or Who Is the Shape-Shifter in a White Collar Trial

In the context of movies, the shape-shifter character is not fixed. They change demeanor, disposition and motivation. The same character is sometimes good, sometimes bad and sometimes incomprehensible — even though the character is, by outward appearances, the same person.

At trial, the shape-shifter archetype refers to evidence or testimony that appears static: Attorney billing records are attorney billing records, the wire transfer is the wire transfer, and the stock trades are just trades.

At least once admitted into evidence, there is no dispute that the documents are, on their face, exactly what they purport to be, without conflict — rather than each side offering its own different version of what the “true” record really is.

But how do they appear to the hero of the trial story — the jury? How can the same billing record or wire transfer or stock trade be relied upon by the prosecution as evidence of guilt, and by the defense as evidence of innocence?

That double reliance only happens because the same evidence, whether a document or a witness’s testimony, can change shape in the juror’s eye, just as a film’s shape-shifter character changes in the hero’s eye.

This article considers how shape-shifting occurs in a few types of white collar cases, and offers strategies for developing effective defenses.

Common Shape-Shifters by Case Type

Shape-shifting can take many forms in a white collar case, depending on the core issue being litigated. Some examples include the following.

Securities Fraud

Trading patterns, casual communications and internal analyses can appear either as standard portfolio management, routine business discussions and appropriate due diligence — or as insider trading or other improper activity by insiders.

Healthcare Fraud

Medical-necessity determinations, billing codes and referral relationships can appear either as clinical judgments, efficient administrative systems or professional courtesies — or as fraud, upcoding and kickbacks.

Government Contracting Fraud

Bid modifications, change orders and communications with contracting officers can appear either as standard business practice, necessary adaptations and proper relationship management — or as collusion, intentional underbidding or improper influence.

Tax Fraud

Documentation can appear either as legitimate tax planning with standard business records — or as evasion schemes.

Strategies for Context and Control

To counter the shape-shifter archetype, defense teams need to establish context. With context, one begins to control the narrative. The shape-shifting stops when you educate enough jurors about the narrative you have wrested away from the shape-shifter — and your adversary.

Context

In a business crime trial, context is everything.

Timelines must avoid clutter, yet also show the broader business environment, as well as the smaller subset of facts pertinent to the trial.

On cross-examination, even witnesses cooperating with the prosecution will often endorse industry standards and practices that explain suspicious patterns in the documents.

Demonstratives that illustrate how different interpretations arise from the same facts drain the shape-shifting evidence or testimony of its power.

Narrative

Persuasive power is a function of narrative control: Whoever controls the narrative has the most power. Shape-shifting evidence is difficult to defuse, as it readily adapts to the proponent’s narrative.

Will medical records be in evidence? Will both the prosecution and defense claim that the identical records justify their positions? Acknowledge that odd fact in the opening, and prepare witnesses to talk about it.

Does the government take advantage of jurors’ unfamiliarity with complicated business analytics? Every cross-examination by the defense should teach a 101 course in those exhibits, and thus arm defense-leaning jurors with a fixed sense of meaning in an otherwise shifting landscape.

Indeed, closing arguments may be about little more than immobilizing the shape-shifting evidence in your favor.

Jury Education

Jurors respect the defense lawyer who acknowledges how things look from their point of view — that the same evidence can appear inculpatory at one stage of the trial and exculpatory at another stage. By doing so, the lawyer becomes a trusted teacher.

When defense counsel plays this teaching role, they support defense-oriented jurors by illuminating the shifting nature of the evidence and, at least by implication, lead jurors to the conclusion that the adversary was trying to get away with a fast one.

Conclusion

The shape-shifter archetype in white collar cases poses unique — if sometimes weird — challenges for defense counsel. But there are also opportunities if defense counsel establishes context, controls the narrative and educates jurors so that the shape-shifting document or witness is fixed with the meaning they desire.