Steven J. Johansen*
This much we know: stories can change people’s minds. Literally hundreds of studies have found that stories are effective narrative tools.1 No study has found otherwise. Applied Legal Storytelling2 is a growing field of discourse that explores the power of storytelling in a wide variety of law practice areas.3 There has been relatively little written about the ethics of legal storytelling.4 Yet, in talks with colleagues around the country I have been struck by a recurring sense of unease when the conversation turns to Applied Legal Storytelling. We all recognize, perhaps intuitively, that stories are powerful. But the unease comes from a concern that they may be too powerful or, perhaps, inappropriately powerful. Specifically, questions remain about the ability of storytellers to cross the line from effective and appropriate persuasion to inappropriate manipulation.
This essay explores three characteristics of story that give rise to the concerns that storytelling is unfairly manipulative. To examine these concerns, I consider three stories—two about the law, one about an Irish tour guide. I use these stories to illustrate the three characteristics of story that may raise ethical concerns. There are, undoubtedly, other potential ethical land mines on the road of Applied Legal Storytelling, but I will discuss only these three. My hope is that these stories will encourage others to join in the conversation and that in doing so, we will develop a richer understanding of the appropriate limits of storytelling’s power in a legal context.
The first story illustrates that stories do not have to be true to be credible. Narrative coherence and fidelity, not truth, is what makes a story believable.5 The second story shows how stories are always told from a particular point of view.6 That necessarily means other points of view are slighted or not told at all. What we leave untold may often be as powerful as the story we tell. If we leave out too much, our story becomes misleading. Finally, the third story examines the ability of story to appeal to emotions as well as to logic.7 This seems at odds with our traditional concepts of objective, impartial justice. Indeed, it is perhaps this aspect of story—that it allows our emotions to override our objectivity—that creates the most strident objections to its “manipulative” power. Despite these potential pitfalls, I ultimately conclude that Applied Legal Storytelling does not create new ethical dilemmas. Rather, closer inspection of these ethical concerns shows that storytelling is consistent with our existing norms about the ethical practice of law.
This is not to say that Applied Legal Storytelling advocates may sally forth with little regard to ethical limits. As explained in the concluding section, the stories below illustrate a need for caution. While story may not necessitate new ethical guidelines, neither does it exist outside our existing ethical norms.
As we embrace Applied Legal Storytelling, we will be well served to keep our stories cabined within those existing ethical norms. First, stories need not only be persuasive, they must also be honest. That is, the stories lawyers tell must reveal their clients’ good faith beliefs. Furthermore, lawyers must recognize that storytelling requires adhering to those ethical duties that keep persuasion in check. Finally, we must remember that stories should not be told for the sole purpose of exploiting their emotional appeal. Rather, we should use stories to combine appeals to emotion and reason. It is the ability of story to engage the audience in whole-brain thinking that best justifies its use in the law.
To begin, we need to consider what we mean by “story.” Kendall Haven suggests that story is distinguished from other forms of narrative by three characteristics.8 First, it is character based.9 Second, that character has a goal.10 Third, the character must overcome obstacles to achieve that goal.11 Of course, from this fundamental definition spring several commonly accepted features of story: plot, conflict, point of view, temporal progression,12 and so forth. All of those features, however, are really consequences of Haven’s elements of story structure: character, goal, and obstacles. With that understanding of story, we turn to the first characteristic of stories that may raise ethical concerns—that stories need not be true to be persuasive. For that, we begin with a story told to me by a cab driver in Belfast.
II. Was Colonel Sanders a Terrorist?
A few years ago, my family and I visited Northern Ireland. Having survived the terror of the Carrick-A-Rede Bridge,13 we were interested in learning a bit about the “troubles” and so we took a Black Cab tour of the city. Among the most interesting sights on the tour were the murals painted on building walls in both the Catholic and Protestant neighborhoods. Our driver explained the significance of each of these murals, from the one of Bobby Sands to one with the peculiar combination of Queen Elizabeth and heavily armed Protestant vigilantes. But he saved the most surprising one for last. “I bet you’re wondering about the mural at the end of the road.” Indeed we were. For there, in the midst of the most troubled Protestant neigh- borhood along Shankill Road, was a mural with two soldiers holding automatic weapons and the somewhat intimidating greeting:
Welcome to the UFF Heartland
This, by itself was not extraordinary. What got our attention was the image of Colonel Sanders peering over the mural—for this mural was on the side of a KFC store! We became even more intrigued when our driver told us the story behind that particular mural:
Colonel Sanders was a soldier in World War I. For reasons long since lost, he ended up in Belfast in 1918. Now this was the time of the Irish Rebellion, and there was a lot of tension between the rebels and loyalists. Anyway, Colonel Sanders (of course, he was just Harlan Sanders back then) became sick with fever and went to a hospital for help. However, he was apparently strongly anti- Catholic and refused to be treated by a Catholic doctor and left the hospital in a state of near delirium. Not far from the hospital, he collapsed on the street. As it happened, he was discovered by a nurse—a Protestant nurse. This kind woman gathered her sons to help her carry this fallen soldier to their small home where, for three weeks, she slowly nursed him back to health.
Forever grateful for the kind treatment he received, Colonel Sanders never forgot the kindness he was shown by this nurse. For the rest of his life, he became an ardent supporter of the Protestant cause. When the troubles started heating up again in the 70s, Sanders donated hundreds of thousands of dollars to the UDA. In fact, until he died, he promised to support the UDA. And so he did.
I must admit this story caught me by surprise. Despite my interest in Irish history, I had never heard this side of Colonel Sanders before. I was quite surprised that the genteel chicken seller in the white suit had also been a zealous supporter of one of the most violent terrorist organizations in the Western world. As I was mulling over the consequences of that revelation, our driver admitted what few storytellers will:
“Now that story is a lie. I told you that story to show you how easy it is for misinformation to spread. People will believe anything if you tell a good story. In Belfast, both sides have a lot of stories to tell.” 15
My Belfast tour guide illustrated our first characteristic of stories that causes concern in the legal context. To be believable, stories must have narrative coherence and fidelity, that is, they should have the quality of narrative rationality that Chris Rideout has written about.16 That is, they have to make sense—they have to unfold in a logical way; characters have to act in ways that correspond with our expectations.17 Simply put, stories need to fit into the listener’s understanding of the way the world, or at least the world of the story, acts. But what stories do not have to be is true. Fiction can be believable, and the truth can seem implausible, or downright impossible. Indeed, in the real world, people do not always act to achieve a particular goal. Events do not necessarily happen in a logical order, fit together, or necessarily advance our real life story. In real life, things happen that make no sense. For example, consider what happens when someone leaves her keys on her dresser when she heads for work. In a story, that act happens for a reason—the character may be unable to open her office door—leading to an unexpected change in the day’s unfolding. In real life, it may make no difference at all. She may have to ask someone to let her into her office, and that will be that. The day just goes on.
I have told the Belfast story dozens of times. Almost every time I tell the story, the punch line catches the listener by surprise. Even though my listeners have known about Colonel Sanders their entire lives, they believe the story; they believe that he might have supported a terrorist organization even though that claim is completely false and contrary to everything they might have ever heard about Colonel Sanders.18 Still, the story makes sense. The characters acted as we would expect them to act. The storyteller seemed credible.
The point here is not that stories are necessarily false. Nor that stories are always fictitious. Rather, it is that the persuasiveness of a story does not turn on its truth. It turns on its narrative rationality—its logical coherence, its correspondence to audience expectations. This is problematic in a legal context because we want listeners, be they juries, judges, clients, or even opposing parties, to be influenced by the truth. In the legal context, truth matters. If stories can persuade whether they’re true or not, that’s not good. If lawyers tell stories that are coherent but false, they cross the line from persuasion to manipulation.
To be sure, there are contexts where the truth of a story really doesn’t matter. Parables are generally works of fiction, but they are valuable and appropriate teaching tools. Of course, when we tell a parable, our listener knows that the story is not really true. But consider the following story that I tell my first-year Legal Writing students:
A $1500 suit walks into the Court of Appeals followed closely by a $400 suit. The $1500 suit gets up to begin his oral argument, while the $400 suit sits at counsel table, shuffling through stacks of papers. The $1500 suit opens his argument by explaining the holding of the case that is central to his argument. One of the judges interrupts him: “Excuse me counselor, but that case has been overruled.” The $1500 suit, without skipping a beat, says, “One moment, your honor” and calmly turns to the $400 suit: “You’re fired.” He then turns back to the bench and continues with his argument.
I tell this story to make an important point: senior lawyers rely on junior lawyers to pay attention to details, including updating cases. My students learn (I hope!) that they always need to update their authorities and if they don’t, there can be severe consequences for them.
I first heard this story from Mary Beth Beazley.19 I suspect, but don’t know, that it is apocryphal. But whether it’s true or not really doesn’t matter in this context. It makes its point. If it is not true, but my students believe it to be true, no real harm is done. I doubt that if my students learned it was not true, they would reject its lesson or think less of me.20
Of course, if we are telling stories to juries, or judges, or clients,21 truth matters. In most legal contexts, the truth matters as much as the narrative coherence. I suspect even the most cynical litigator would agree that presenting a well-spun, but utterly false, story to a jury crosses an ethical line. Even in the context of criminal defense, where we permit lawyers to encourage juries to draw false inferences, we don’t allow out and out lies.22We don’t knowingly allow criminal defendants to tell false stories in their defense, no matter how convincing those stories may be.23 Thus, the nature of stories—that they need not be true to be persuasive— may create ethical concerns that other forms of narrative do not.24
Solving the narrative coherence problem, however, does not require significant ethical limitations on storytelling beyond the existing ethical norms of our profession. First, though a lawyer may be able to use stories to create persuasive but untruthful evidence, she is certainly not required to do so. Surely, stories that reflect the truth may also be narratively coherent.
Truth is, of course, a slippery thing. Very often in legal disputes, parties honestly disagree as to what the truth of the matter really is. In such cases, stories can help explain the conflicting points of view. They may also show the shared common ground, thereby narrowing the scope of the dispute. Thus, where the truth is honestly at issue, stories, honestly told, are useful tools for finding just resolution. This does raise a host of ethical questions: May a lawyer tell his client’s story even if the lawyer doesn’t believe it? Does a lawyer have an obligation to investigate his client’s story before presenting it? When we present a story from a particular point of view, may we ignore facts that are contrary to that point of view? These and many other questions are raised whenever we try to give defined form to the mushy concepts of “truth” and “justice.” How we answer these questions is beyond the scope of this essay. But I suggest that how we answer these questions does not change in the context of Applied Legal Storytelling.
The narrative coherence problem is perhaps best kept in check if lawyers remember that stories, like all persuasive tools, should be used to promote only the client’s legitimate interests. Just because a narratively coherent lie may be effective doesn’t make it appropriate. Some may argue that relying on the ethical compass of lawyers is an insufficient brake on the exploitation of narrative coherence. But such reliance is not the sole check. We have a number of ways to counter the overzealous lawyer who refuses to let truth get in the way of his good story.
The very nature of the adversarial system protects against efforts to deceive. Of course, all parties are able to present their own stories. Opposing counsel may expose the weakness of a narratively coherent, but false, story through cross-examination or closing argument. Existing prohibitions against lying25 provide considerable restraints on efforts to abuse the power of story. But, like virtually all of our ethical principles, the best check on abuse is every lawyer’s interest in protecting her reputation as an advocate who can be trusted. The vitality of our ethical rules depends on the self-regulating nature of our profession. Keeping the narrative coherence problem in check is no different.26
We now turn to a related problem: stories are told from a point of view. This necessarily means we are not getting the “whole truth” in a story, but only one perspective on it. To illustrate this potential problem, we turn to the story of Michael Nifong and the Duke Lacrosse Case.
* © Steven J. Johansen 2010. Professor of Law and Director of Legal Writing, Lewis and Clark Law School. This essay was supported by a summer research grant from Lewis and Clark Law School. I wish to thank: Professor Ruth Anne Robbins for her inspiration, insight, and insistence that I complete this essay; Professor Ken Chestek for our many conversations about the interplay between ethics and story; my colleagues on the Lewis and Clark faculty for their helpful comments on an earlier version of the essay; my research assistant, Bridget Donegan, for her thoroughness and tolerance as we worked through the early stages of our work; and, as always, to Lenore Honey Johansen for her bemused patience.
1 See Kendall Haven, Story Proof: The Science Behind the Startling Power of Story 4 (Libs. Unlimited 2007).
2 Ruth Anne Robbins first coined the term “applied legal storytelling” as a way to distinguish the exploration of how narrative theory is integral to the practice of law from the broader traditions of law and literature. To explore the basics of applied legal storytelling further, see Ruth Anne Robbins, An Introduction to Applied Storytelling and to this Symposium, 14 Leg. Writing 3 (2008) and Brian J. Foley, Applied Legal Storytelling, Politics, and Factual Realism, 14 Leg.Writing 17 (2008).
3 See e.g. Paula L. Abrams, We the People and Other Constitutional Tales: Teaching Constitutional Meaning Through Narrative, 41 The Law Teacher 247 (2007); Stacy Caplow, Putting the “I” in Wr*t*ing: Drafting an A/Effective Personal Statement to Tell a Winning Refugee Story, 14 Leg. Writing 249 (2008); Kenneth D. Chestek, The Plot Thickens: The Appellate Brief as Story, 14 Leg. Writing 127 (2008); James Parry Eyster, Lawyer As Artist: Using Significant Moments and Obtuse Objects to Enhance Advocacy, 14 Leg.Writing 87 (2008); Elizabeth Fajans & Mary R. Falk, Untold Stories: Restoring Narrative to Pleading Practice, 15 Leg. Writing 3 (2009); Robert L. Hayman, Jr. & Nancy Levit, The Tales of White Folk: Doctrine, Narrative, and the Reconstruction of Racial Reality, 84 Cal. L. Rev. 377 (1996); Ruth Anne Robbins, Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle U. L. Rev. 767 (2006); Stephanie A. Vaughan, Persuasion Is an Art . . . But It Is Also an Invaluable Tool in Advocacy, 61 Baylor L. Rev. 635 (2009); Marianne Wesson, “Remarkable Stratagems and Conspiracies”: How Unscrupulous Lawyers and Credulous Judges Created an Exception to the Hearsay Rule, 76 Fordham L. Rev. 1675 (2007).
4 See Steven J. Johansen, This Is Not the Whole Truth: The Ethics of Telling Stories to Clients, 38 Ariz. St. L.J. 961 (2006); Binny Miller, Telling Stories About Cases and Clients: The Ethics of Narrative, 14 Geo. J. Leg. Ethics 1 (2000).
5 SeeWalter R. Fisher, Human Communication As Narration: Toward a Philosophy of Reason, Value, and Action (U. of South Carolina Press 1987); Delia B. Conti, Student Author, Narrative Theory and the Law: A Rhetorician’s Invitation to the Legal Academy, 39 Duq. L. Rev. 457, 458 (2001).
6 See Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 Rutgers L. Rev. 459, 465 (2001).
7 See Jonah Lehrer, How We Decide 245 (Houghton Mifflin Harcourt 2009).
8 Haven, supra n. 1, at 79.
12 That is, stories have a beginning, middle, and end.
13 The Carrick-A-Rede Bridge is a popular, dramatic, and when the wind blows, terrifying, tourist stop in County Antrim, Northern Ireland.
14 “Who will separate us?” This is the motto of the Ulster Freedom Fighters, the militant branch of a Protestant paramilitary organization, the Ulster Defense Association, or UDA.
15 I was hesitant to tell this story for fear that it too would perpetuate a myth about Belfast. Contrary to common perceptions, Belfast is a beautiful and vibrant city. Despite its troubled past, it is also a very safe place to visit. Indeed, all of Northern Ireland is most welcoming to visitors and well worth the trip.
16 J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 Leg. Writing 53, 55 (2008).
17 See id. at 67.
18 The only person who flat out did not believe this story was the late Debbie Parker—who had extensive experience with Irish tour guides. Before I even told her the punch line, Debbie smiled and said, “Oh, you can’t trust anything an Irish tour guide says! They’ll tell you anything to make a good story.” This of course proves the point: the believability of a story turns not on its truth, but on its narrative coherence—whether the characters act as we expect. Debbie saw that part of the charm of Irish tour guides was their ability to tell fanciful stories; most other folks expect those stories to be true.
19 Professor and Director of Legal Writing, Moritz College of Law, Ohio State University.
20 Nonetheless, just to be clear with my students, I tell them that I don’t know if the story is true or not.
21 Johansen, supra n. 4, at 984–92.
22 Model R. Prof. Conduct 3.3(a) (ABA 2009).
23 See id.
24 For the distinction between story and other forms of narrative, see Haven, supra n. 1, at 79–80.
25 See e.g. id.
26 That said, a coherent but false story may be more problematic than other kinds of deceptive evidence. For example, George Lakoff posits that even when presented with evidence that contradicts our stock stories, we tend to remember our stories and dismiss the conflicting evidence: “Suppose a fact is inconsistent with the frames and metaphors in your brain that define common sense. Then the frame or metaphor will stay, and the fact will be ignored. For facts to make sense they must fit existing frames and metaphors in the brain.” George Lakoff, Whose Freedom? The Battle over America’s Most Important Idea 13 (Farrar, Straus & Giroux 2006).