B. Storytelling Practice: How Lawyers Tell Stories
Cultural psychologist Jerome Bruner describes the act of storytelling as so instinctive and intuitive as to render an explanation of how we do it close to impossible: "We stumble when we try to explain, to ourselves or to some dubious other, what makes something a story rather than, say, an argument or a recipe."36 And yet, if we are to be effective storytellers—the kind who explain not only how law is found, but also how it is made—we must be able to overcome this asymmetry between doing and understanding what we do.37We must be able to describe—if only to ourselves, so we can do it again—what goes into the making of a story.
Lawyers are particular kinds of storytellers, influenced by variables unique to their role as tellers of their clients' stories. In that role, as makers of legal arguments, we decide what story to tell and how to tell it "guided by some vision of what matters."38 Put another way, to figure out what story to tell and how to tell it, the lawyer must weigh three substantive factors, the same factors that make up the theory of the case: the law, the facts, and the client's goals.39 In addition, of course, the lawyer must consider contextual factors, e.g., the audience, the forum, the availability of resources, and the personalities of the client and other potential supporting or detracting characters in the story. The lawyer must also consider particular cultural norms and values in deciding among different stories and ways of telling them. And finally, the lawyer must consider factors personal to himself in determining what story to tell and how to tell it: is he comfortable in a courtroom, can he pull off a humorous narrative, does he do better in a more formal or less formal setting, does the client's situation raise personal moral or ethical concerns?40
Storytelling is pervasive. When a lawyer drafts a statement of facts, for example, she does not simply record the known universe of "relevant" facts in an interesting and persuasive way. Indeed, there is no such thing as an absolutely neutral description of the facts.41 As lawyers, we engage in fact-gathering repeatedly—at initial client interviews, after we've done some legal research, in anticipation of the other side's argument—and then we "pick and choose from available facts to present a picture of what happened"42 that most accurately reflects our sense of what matters.43 And the other lawyers involved do exactly the same thing, with exactly the same pool of facts, but emphasizing different details, drawing different inferences, and thus drawing quite a different picture.44
And this selectivity applies to the "how" too. The law might define what is relevant (and I say "might" deliberately), but it cannot define "how the relevant facts, in a particular case, are to be expressed."45 It is up to the lawyer to figure out what words to use, with what emphasis. A lawyer's statement of facts thus "reflects—by its inclusions and exclusions, the emphasis of its sentence construction, and the structures of its argumentation— choices."46 Lawyers make choices about the other technical elements of a story as well: when the story should begin and when it should end, how quickly or slowly the action should move, how fleshed out each character should be. Kim Lane Scheppele provides wonderful examples of choices judges make in the "how" of their stories (for appellate opinions are of course stories), both about word choice ("lightly choke" v. "heavy caress")47 and framing (beginning with the defendant's childhood rather than beginning with the night of the crime).48
Thus, stories are not "recipes for stringing together a set of 'hard facts.' "49 Rather storytellers first construct the facts and then construct the stories50 by sorting through what is out there and figuring out both what to say and how to say it, based on the storyteller's own perspective about "what matters." Narrative is not a linear framework structure into which events are slotted but instead a set of events that can be organized into alternative narratives, and the choice among them depends on perspective, circumstances, and interpretive frameworks.51 And those choices are governed by what we care about. Thus, the "fabric of narrative reflects the shape of our concerns."52
C. Attention to Narrative Theory Makes Us Better Lawyers
For lawyers, figuring out "what matters" is a complex and nuanced process.53 When we choose what story to tell and how to tell it, we must work thoughtfully and responsibly to reconcile and balance various facets of "what matters." What lawyers must appreciate is that when we choose to tell a particular story in a certain way, we are shaping future stories. If the story we present is persuasive, then other stories will be shaped to fit that "winning" story. The legal process reifies what it recognizes as actionable harms, essentially making law. When constructed and told without contextual awareness or intention, some stories may end up making very bad law.
Understanding storytelling is a way to understand persuasion. We persuade by telling stories that decision makers believe and adopt. Narrative theory is so compelling partly because stories are elemental to human interaction—we recognize and react to them instinctively.54 So my suggestion that lawyers use narrative theory in their practice is not a suggestion that lawyers do anything radically different, just that they harness what they're already doing in some systematic and intentional way. If as they listen to their clients, something doesn't make sense, or they find themselves wondering about the absence or presence of a particular character, or they imagine how they might feel in a similar situation, narrative theory suggests that they should recognize those reactions as important clues. Lawyers should use these clues to help guide their ongoing pursuit of the client's narrative and to work with the client to construct a story that will engage the decision maker's curiosity and compassion without triggering his disbelief or dismissal.
This approach is distinct from letting a lawyer's own values and judgment guide the story construction process. Instead, narrative theory helps lawyers harness our natural curiosity and skepticism. Although imagination and common sense are valuable tools for listeners and storytellers, such tools need to be used carefully. If they are used with intention and awareness of the choices underlying story construction, then they will be used in ways that do not allow the lawyers' voice to dominate or overwhelm the client's and that do not lead to the making of law that the lawyer did not anticipate or intend through the adoption of misconstructed stories. 55
I can anticipate the usual reaction to suggestions that we use more theory in our practice: "how can I possibly do all this? I don't have time; I can barely get the client's facts out in the first interview, let alone do all this narrative theory stuff." But the reality is that lawyers do all this anyway; we just don't know we're doing it, and we are therefore not doing it as intentionally, and as effectively, as we could be. If we don't understand the choices we make so that we can make them intentionally, we will fail in our effort to persuade the decision maker, or we will persuade the decision maker to act in a way that ultimately does not benefit our client, or future clients.56 All of which is to say: using narrative theory is a way to understand that we are making these choices, and it helps us to make them intentionally, which in turn leads us to become better lawyers.
II. The Pedagogy of Narrative and Storytelling
Legal education is at an important crossroads. The Carnegie Report57 and Best Practices for Legal Education58 describe legal education as deficient in actually producing competent professionals.59 By bringing together theory, doctrine, skills and values, narrative theory and storytelling practice help students develop as the more fully integrated lawyers that these reports envision.60
A. The Pedagogical Theory
Indeed, many teachers are using particular kinds of stories or storytelling exercises to teach specific doctrine or skills.61 In addition, scholars and professors use works of literature to focus their students' attention on particular values like anti-racism, justice, cross-cultural competence (voice of outsiders), ethics, creativity, and compassion.62 James Elkins and other narrative theory scholars from the early 1990s suggest that the study of literature should be added to the law school curriculum to help the imagination of students in challenging the apparently objective and machine-like character of the law.63 I build on this idea by suggesting that a pedagogy built around narrative theory and storytelling practice can help students understand that there is no such thing as the monolithic Law, rules that are simply discovered or found out there somewhere. Instead, law comprises a series of stories—ever changing—and those stories are constructed not by some objective external Decision Maker in the Sky, but by lawyers, lawyers who once were law students.
I teach skills, doctrinal, and clinical courses, and I use narrative theory in all three, all with the same goal: to help students recognize that as lawyers, they are not only hearers and tellers of stories, but also, and perhaps most important, constructors of stories. A pedagogy that relies on this theory leads students to realize that The Law itself is a set of stories that have been adopted by decision makers and that those stories have been constructed by none other than lawyers.64
Ann Shalleck describes narrative theory as a way "to further our understanding of both the dynamics in relationships between lawyers and clients and the nature of the law that gets created through that interaction." 65 As mentioned earlier, I hope that my students will learn the doctrine of custody or intervivos transfers in my Family Law or Trusts and Estates courses, that they will begin to understand the goals of direct and cross examination in my Advocacy course, and that they will gain confidence in the practice of filing Articles of Incorporation or drafting a Health Care Directive in my Legal Planning Clinic. But the storytelling exercises I use in all three kinds of courses are designed to go beyond the particular skills or doctrine on which each course is centered. The storytelling exercises are designed to challenge students to deconstruct the story they are hearing or telling, to gain understanding of that story's substantive and technical elements, and to recognize the choices that lawyers must make to construct a story that is persuasive and compelling and likely to further their client's goals. Introduction to Symposium, Pedagogy of Narrative, 40 J. Leg. Educ. 1 (1990); Nussbaum, supra n. 5, at 278; Foley, supra n. 6, at 19, 34; David Ray Papke, Discharge as Denouncement: Appreciating the Storytelling of Appellate Opinions, 40 J. Leg. Educ. 145 (1990); Menkel-Meadow, supra n. 6, at 787, 792–794 (2000); Ledwon, supra n. 6, at 123, 130.
B. My Pedagogical Practice
Regardless of their official content, most of my classes explore narrative theory and storytelling practice. That is, they include discussions about what stories are and what makes them "good"—the "what" and the "how." In addition, my students spend time focusing on the elements of the story and the choices that resulted in the story's substance and structure. These discussions and exercises recur throughout the semester so students have the opportunity to revisit the concepts at higher and higher levels of complexity, resulting, at the end of the semester, in an understanding of the practice and theory of storytelling as an essential component of their roles as lawyers and participants in the development of the legal system. Thus, I use a "spiral theory" (as opposed to a "parachuting- in theory") of teaching these ideas. In addition, I use these ideas across content and skills, not only in litigation contexts and not only in clinic or traditional skills courses. The remainder of this section will describe the exercises and discussions I use in a required upper-level skills course called Advocacy, a legal planning clinic, and two traditional "doctrinal" courses.
1. Storytelling Practice in Advocacy Class
In many ways, this is the easiest and most obvious context in which to teach the uses of storytelling. What began as a trial advocacy course has evolved to include other forms of advocacy, but the course revolves around a series of oral exercises that track the trial experience, beginning with taking a deposition and concluding with a full-blown (albeit shorter than typical) trial.
The storytelling theme emerges in the very first class as I describe the "universal tasks of lawyering" as "hearing stories, constructing stories, and telling stories." I tell my students that this "storytelling framework" is more than a metaphor: it is a practical method of unpacking what lawyers do (hear, construct and tell stories) and how to do it well, in whatever context the students end up practicing law. We then begin the process of identifying and exploring the substantive and technical elements of a story, introducing the ideas of the "what" and the "how" of stories.66 The theory and practice re-emerge in subsequent classes on case theory, direct and cross examination, opening statements, and closing arguments.
My favorite set of exercises is the basis for a class called "using facts to persuade." In the class, I briefly describe the relevant facts of a coerced confession case: in 1958 in North Carolina, an African-American man, Elmer Davis, confessed to the rape and murder of a white woman.67 My colleague and I play the lead roles during the following hypothetical direct examination that takes place at an imagined suppression hearing to determine whether the confession was coerced:
Prosecutor: Lieutenant, who was in charge of overseeing the interrogation of Mr. Davis?
Witness: I was.
Prosecutor: Is there a Department protocol for interrogation of prisoners?
Prosecutor: Please describe that protocol to the judge.
Witness: We limit interrogations to twice daily, once in the morning and once later in the day.
Prosecutor: What procedure did you follow for the interrogation of Mr. Davis?
Witness: We followed that Departmental protocol. I typically interrogated Mr. Davis in the morning, and another officer questioned him later in the day.
Prosecutor: Did that procedure vary?
Witness: No, we followed that procedure the entire time Mr. Davis was in custody, up until the time he confessed.
I then ask the students to identify the state's theory of the case and what facts the prosecutor sought to elicit in support of that theory. They quickly come up with the theory as being that the confession was not coerced, supported by the facts that there was a policy against around-theclock questioning and that the policy was followed. They are persuaded by this story. For the moment.
My colleague and I then engage in another direct examination in the same suppression hearing, this time conducted by the defense attorney, with the defendant as the witness.
Defense Attorney: Mr. Davis, how long were you in jail before you gave the statement to the police?
Defendant: Sixteen days.
Defense Attorney: Please describe the cell where you were being held.
Defendant: It was a small cell in the back of the jail, with a bed and a chair. There was a little window out into the jail yard.
Defense Attorney: Was there a clock in the cell?
Defense Attorney: Did you have a wristwatch?
Defendant: No, they took my watch away from me when they put me in jail.
Defense Attorney: During that sixteen days, how often did the police question you?
Defendant: Pretty much all the time.
Defense Attorney: When you say "pretty much all the time," what do you mean?
Defendant: After I woke up in the morning, one of them would come in and start asking me questions. That would go on all morning and then he'd leave. Then after a while another one would come in and start up all over again.
Defense Attorney: Was it light out while you were being questioned?
Defendant: Sometimes it was.
Defense Attorney: And was it ever dark out while you were being questioned?
Defendant: Sure it was.
Defense Attorney: How long did that kind of questioning go on?
Defendant: Every single day until they got me to sign this statement.
Again, I ask the students to identify the defendant's theory of the case and the facts the lawyer elicits in the direct examination to support that theory. Again, they quickly come up with a theory: this time, the theory is that the confession was coerced because the defendant felt that he was being subjected to constant interrogation. The facts that support that theory are that he didn't know what time it was and that he was questioned while it was light and while it was dark.
The point of these two role plays, a point that the students grasp immediately, is that the facts in both stories are "true"—there was a protocol observed during the interrogations (twice a day, between 7:30 a.m. and 11:30 p.m.), and the officers in this case followed that protocol; and the defendant's only sense of time was based on the changing light outside his window, and he was questioned while it was light and while it was dark. The prosecutor can therefore argue that the interrogation was "repeated" or "sporadic," and not coerced; therefore, it should be admitted into evidence in the trial. The defense, however, can argue that the interro- gation was "constant" and therefore created a kind of duress that resulted in the defendant's confession. Thus coerced, the confession should be suppressed.
Because all the "facts" are "true," the students recognize that the attorneys for both parties have had to make choices about what facts to select to persuade the decision maker that the attorney's particular story is the one to be believed and thus adopted by the court. The exercise demonstrates the lesson that the "true story"—"what really happened"—is not something objective and static, waiting to be "found" by a good investigative lawyer. On the contrary, "what really happened" is determined by the decision maker's adoption of one or the other of the stories the lawyers have offered. And those stories are, in turn, constructed by the lawyer with the goal of persuading the decision maker. The law is made by the choices the lawyers make.
I use this case for another exercise as well, also involving a direct examination, this one having to do with the decisions lawyers must make about when to start their stories. We move forward in time a bit and are now at the trial. Let's say the judge at the suppression hearing allowed the confession to come in. The same police officer is about to take the stand, and I ask the students to brainstorm about when and where to begin the direct examination. How, in other words, should the prosecutor frame the story this witness can tell? Almost invariably the students suggest that the examination should begin with a description of the murder Mr. Davis is alleged to have committed and his subsequent arrest, and the examination should end with his confession. The students want to draw a very tight frame around the story this witness will tell, and, indeed, the story the prosecution tells at this trial is itself a very tightly framed story: Davis did this horrible thing. How do we know? Because he told us.
My colleague and I then engage in another direct examination of Mr. Davis, playing the role of the defense counsel:
Defense Counsel: Mr. Davis, where did you grow up?
Defendant: Here in Alabama in Jefferson, just five miles from here.
Defense Counsel: Do you remember the first time a policeman ever talked with you?
Defense Counsel: Tell the jury about that, please.
Prosecutor: Objection, relevance?
The role play ends here as I ask the students to make arguments to the court about why this line of questioning will lead to relevant information. To answer that question, the students must articulate the defense attorney's case theory as well as how the defendant's story on direct fits into that case theory. The case theory continues to be that the defendant's confession was coerced (even if the jury doesn't buy this argument, the defense attorney is laying the groundwork here for appealing the judge's ruling at the suppression hearing).
So how, I ask the students, is the defendant's first contact with the police relevant? It doesn't take them long to get there—the story of the defendant as a poor black kid in the south at the dawn of the civil rights movement, a young man who is afraid of the police due to frequent and intimidating questioning, provides context and support for the case theory. The background story helps the decision maker make the leap to coercion and duress. Again, the lawyer has made choices about how to frame and structure the story he is telling to persuade the decision maker to adopt his particular story and thus make law that takes that story into account.
Through the lens of direct examination, students explore the practice of storytelling, and through the lens of narrative theory, they explore the practice of direct examination. Experimenting with choices about how to use particular facts; choices about how to frame the exam, when it should begin and when it should end; choices about what language to use, and what evidence to highlight leads the students to recognize that the practice of direct examination is nothing more or less than the practice of telling a persuasive story. It is a practice that takes place in a particularized (and often stilted) way, yes, but one that requires intentional and consistent choices to construct a persuasive and compelling story for the decision maker. Direct examination, in other words, is not just about asking non-leading questions.
36 Bruner, supra n. 23, at 3–4.
38 Amsterdam & Bruner, supra n. 13, at 7.
39 Binny Miller has written extensively about the construction of case theory, which is the incorporation of law and facts and client goals into a story that can be used to drive a case or an organizing campaign. See Binny Miller, supra n. 10, at 487–88 (describing case theory).
40 See Grose, supra n. 35.
41 David Luban, Paternalism and the Legal Profession, 1981 Wis. L. Rev. 454, 463 (1981); see also Scheppele, supra n. 2, at 2089 (discussing "point of viewlessness").
42 Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411, 2421 (1988).
43 This is true regardless of the forum or kind of matter—litigation, planning, transactional, mediation, or negotiation.
44 Delgado, supra n. 42, at 2416–18; see also Lopez, supra n. 2.
45 Bernard Jackson, Narrative Theories and Legal Discourse in Narrative in Culture: The Uses of Storytelling in the Sciences, Philosophy, and Literature 27 (1994).
47 Scheppele, supra n. 2, at 2086.
48 Id. at 2094–96.
49 Amsterdam & Bruner, supra n. 13, at 111.
50 Id. at 116.
51 Amsterdam & Bruner, supra n. 13, at 140–41. Although it is not exactly what I am talking about here, there is a rich body of scholarship on assumptions and lawyer biases that affect the way in which facts are understood. See e.g. Grose, supra n. 35, and sources cited therein.
52 Amsterdam & Bruner, supra n. 13, at 124.
53 Depending on the kind of relationship the lawyer has with the client, and the kind of lawyer he is, the client might play a significant role in helping to choose and craft the story the lawyer tells on her behalf, or she might take a more background role. See e.g. Carolyn Grose, "Once Upon A Time, In a Land Far, Far Away . . .": Lawyers and Clients Telling Stories About Ethics (And Everything Else), 20 Hastings Women's L.J. 163, 188–90 (2009); Gerald Lopez, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (Westview 1992); White, supra n. 9; Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clin. L. Rev. 427 (2000).
54 Robbins & Johansen, supra n. 1.
55 Grose, supra n. 16.
57 William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (Jossey-Bass 2007).
58 Roy Stuckey et al., Best Practices for Legal Education: A Vision and a Road Map (Clin. Leg. Educ. Assn. 2007).
59 "Potential clients should be able to hire any licensed lawyer with confidence that the attorney has demonstrated at least minimal competence to practice law. Doctors' patients reasonably expect that their doctors have performed medical procedures multiple times under the supervision of fully qualified mentors before performing them without supervision. Clients of attorneys should have similar expectations, but today they cannot." Id. at 26.
60 Sullivan, supra n. 57, at 123.
61 See e.g. Caron, supra n. 3; Foley, supra n. 6; Timothy S. Hall et al., Harry Potter, Law, and Culture, 12 Tex. Wes. L. Rev. 427, 464–68 (2005); Davis, supra n. 3;McKenzie, supra n. 6, at 265–69; Mitchell, supra n. 2; Douglas W. Maynard, Narratives and Narrative Structure in Plea Bargaining, in Narrative and the Legal Discourse 102, 105 (David Ray Papke ed., Deborah Charles Publications 1991); Katherine Holmes Snedaker, Storytelling in Opening Statements: Framing the Argumentation of the Trial, in Narrative and the Legal Discourse, supra, at 132; Caplow, supra n. 3; Chestek, supra n. 3; Marcia Canavan, Using Literature to Teach Legal Writing, 23 Quinnipiac L. Rev. 1 (2004); Tovino, supra n. 3; Robert Dinerstein, Stephen Ellmann, Isabelle Gunning & Ann Shalleck, Lawyers and Clients: Critical Issues in Interviewing and Counseling (West 2009).
62 See e.g.Willem J. Witteveen, Reading Vico for the School of Law, 83 Chi.-Kent L. Rev. 1197 (2008); MacDowell, supra n. 2, at 312, 316, 332; Judith G. Greenberg & Robert V. Ward, Teaching Race and the Law Through Narrative, 30 Wake Forest L. Rev. 323 (1995); Phyllis Goldfarb, So Near and Yet So Far: Dreams of Collaboration Between Clinical and Legal Writing Programs, 4 J. ALWD 35 (2007); Spencer, supra n. 2; Maatman, supra n. 2; Rose, supra n. 6, at 38–39, 55–56; James R. Elkins, Introduction to Symposium, Pedagogy of Narrative, 40 J. Leg. Educ. 1 (1990); Nussbaum, supra n. 5, at 278; Foley, supra n. 6, at 19, 34; David Ray Papke, Discharge as Denouncement: Appreciating the Storytelling of Appellate Opinions, 40 J. Leg. Educ. 145 (1990); Menkel-Meadow, supra n. 6, at 787, 792–794 (2000); Ledwon, supra n. 6, at 123, 130.
63 See e.g. Elkins, supra n. 6, at 55, 58; Witteveen, supra n. 62, at 1222; Richard K. Sherwin, Pathologizing Professional Life: Psycho-Literary Case Stories, 18 Vt. L. Rev. 681, 686–687 (1994).
64 See David Ray Papke, Part One: Legal Education—Introduction, in Narrative and Legal Discourse, supra n. 61, at 9.
65 Dinerstein, Ellmann, Gunning, & Shalleck, supra n. 56, at 3.
66 See Amsterdam & Bruner, supra n. 13, at 110–64 (discussing the power of narrative).
67 The exercise is based on Kim Lane Scheppele's Foreword to the Michigan Law Review's volume on legal storytelling, back in 1989. In the article, Scheppele describes two cases that ended up in the U.S. Supreme Court, one involving the rape of a woman, the other involving the allegedly coerced confession of a black man. She contrasts the appellate court decisions in both cases with the Supreme Court opinions, illustrating points about language and framing as important tools of persuasive storytelling. See Scheppele, supra n. 2, at 2086–97.