The Lost Narrative: The Connection Between Legal Narrative and Legal Ethics
Helena Whalen-Bridge*
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Narrative plays a key role in common law legal reasoning and legal practice. When competently inserted into legal argument, narrative is compelling because it appears to be the truth—regardless of what events might have actually occurred. The practice of legal narrative has an unavoidable ethical component, one which should be explored in scholarship and education. However, the ethical dimension of legal narrative is largely unacknowledged in legal education. For example, opinion is divided in some jurisdictions about whether coursework in legal ethics should be required to earn a law degree. The failure to address elements of deception in legal practice leaves students and young lawyers ill equipped to deal with precarious situations, and this severed connection is what I am calling the "lost narrative." The lost narrative contributes significantly to student cynicism and subsequent failure of judgment. First, we must recover the lost narrative. Second, we must incorporate reflection on the ethical dimension of how lawyers communicate by examining the role that narrative plays in legal argument and legal education. If we teach law students narrative skill without any training in related ethical obligations, we do not prepare them optimally for the expectations of the world they will enter upon graduation.
I. Introduction
The phrase "lost narrative" refers to a situation in which events have occurred that some would like to discuss but which cannot, for some reason, be addressed.1 Political censorship is one cause of a lost narrative, as well as when a story is not directly forbidden but is considered, say, to be in "poor taste." Some consider it poor taste or impractical to point out to a budding lawyer that he or she must learn to create versions of the truth that further a client's interest. It is generally acknowledged that lawyers are entitled to represent a client's interest as opposed to a larger truth, but there is a danger that students will lose sight of the limits of this entitlement if they do not carefully study the ethical implications of their professional speech. A good first step would be to identify and challenge the problem of the lost narrative. If it is agreed that such a condition exists, then educational opportunities to reflect on the ethical component of legal narrative can be exploited.
I first became aware of the lost narrative when teaching in a first-year legal skills program at the National University of Singapore Law School,2 a law school in an Asian common law jurisdiction.3 The course taught basic objective and persuasive writing techniques, and in particular the persuasive skill of presenting a case in the manner most favorable to the client's interests. Students were required to present case facts in a manner that explained a client's behavior and supported the student's legal theory of the case. Students understood what they being asked to do, but many hesitated. They did not feel comfortable refashioning the facts they had been given, primarily because they were making up a story that seemed real. Should they imply that the client had an altruistic motive, when perhaps the client did not? Other students felt that their classmates' hesitation was unnecessary, that this is what lawyers do, and that the matter did not require a whole lot of thought. Observing these students, I was struck by two questions. First, what was it that disturbed the concerned students?4 Second, did it matter that some students were not at all concerned?
To answer these questions, I had to consider the implications of what we were teaching students to do—construct a narrative.5 Law students in a number of common law jurisdictions are routinely taught narrative skills, here defined as the ability to present a series of facts or events in an interesting and compelling fashion. As lawyers, they will need to understand how to present their clients' perspective on the facts and the law, and narrative figures prominently in this type of persuasive argument.6
The students who were not troubled when learning narrative skills felt that the students who hesitated were naïve and simply unaware of the rules of the game. Some legal scholars would agree, so this article considers the distinction between scholarly and practical approaches to the ethics of narrative. There is a disconnect between the two approaches, but this article identifies a common thread in the concern for representations of the "truth." To borrow from Catherine MacKinnon's phraseology, scholars and practitioners alike are fascinated with narrative's peculiar capacity to appropriate reality.7 This is the key characteristic of narrative which prompts consideration of legal ethics. The article surveys training in narrative skills and legal ethics in several common law systems of legal education in Asia and other jurisdictions, and it suggests some ways in which programs of legal education can uncover the lost narrative.
II. What Is Legal Narrative?
A. Scholar: This is outrageous
In the diverse body of literature that discusses legal narrative, it can be said that there are two main types of texts: materials geared toward professional practice,8 and books and articles written from an academic perspective. The different texts normally do not intersect, let alone talk to each other,9 perhaps because of the relative lack of professional practice experience in academic circles,10 but comparing the concerns reflected in the two areas arguably provides some insight into the connection between narrative and ethics. As most commonly used, the phrase "legal narrative" is primarily a subject of academic enquiry, and in academic discourse it appears to have two main manifestations. Some scholars characterize legal materials such as case reports as "texts," which can be evaluated as one might read a novel.11 Another group of scholars have inserted the use of narrative into scholarship, either by incorporating the author's own true story or experience12 or that of another when interacting with a law, or by creating fictional accounts of people's experiences with a law.13
This second use of narrative in the primarily analytical world of legal scholarship has created a considerable schism. According to Benjamin Apt, a proponent of narrative, legal narratives typically concern legal injustices, and they are important because they offer an alternative to the generally accepted form of legal history.14 Legal narratives are significant because they take the reader to an experience where the law is familiar but the impact is not.15 Binny Miller asserts that "[s]tories are better than traditional methods of legal analysis for understanding legal issues in context," that "stories demonstrate that standards that seem neutral in the abstract are rarely so in practice," and that "[s]tories are lively and engaging in ways that doctrine often is not."16
However, the use of narrative in legal scholarship has been criticized, in particular by Daniel Farber and Suzanna Sherry. In Beyond All Reason,17 Farber and Sherry argue that the primary goal of legal scholarship is to identify points of improvement in the law, and that proposals for legal change should be based on reasoned argument and empirical data, not stories.18 Farber and Sherry assert that stories are suspect because of the risk that they are atypical, inaccurate, or incomplete.19 In response, proponents of narrative in legal scholarship argue that the use of narrative is necessary when confronting well-established but flawed understandings of the law.20 In attempting to resolve the debate about whether narrative has value, at least one author has argued that the value of narrative lies in its literary trait of upsetting traditional norms, and that narrative should not be evaluated on the basis of more traditional methods of legal analysis.21
B. Lawyer: What's all the fuss?
Trial lawyers are intimately familiar with the power of stories to persuade.22 If a trial lawyer could be persuaded to read academic articles, the controversy represented there might elicit a yawn. However, comparing academic and practical perspectives on legal narrative can provide assistance in understanding the full power of narrative and its potential for insight as well as harm.
In her 1998 article, The Value of Narrative in Legal Scholarship and Teaching,23 Jean Love suggests in a manner similar to Farber and Sherry that there are three main concerns with narrative: (1) whether it is valid or truthful; (2) whether it is typical of real world experiences; and (3) whether it discourages debate and reply because it is emotive.24 If we compare academic and professional concerns about narrative, we can quickly note that a trial lawyer would not be bothered in the least by the second or third concerns. A client's experience need not be typical to merit consideration or assistance from the court, and the lawyer's job (as opposed to that of the larger system of dispute resolution) is primarily to persuade the audience and not elicit debate. An ethical trial lawyer, though, might hesitate about the first concern. But why would the issue of truth be a common concern to both scholars and practitioners?
The answer lies in the authoritative power of narrative. When an academic author shares an experience of rape,25 we are unable to challenge her assertions because the experience relayed appears to be true. When a lawyer relates a client's story in court that pulls together disparate facts in a way that explains and justifies the client's behavior, the story is persuasive because it presents a version of events that rings true— regardless of what "actually" happened according to another perspective. When a beginning law student organizes and shapes a fictionalized set of facts to tell a story, the student is creating a truth—albeit one that did not actually happen. The vehicle of narrative, once mastered, creates a compelling version of the truth.
Why narrative persuades in such a compelling manner, a considerable inquiry in its own right which this article only touches upon, may be explained by the centrality of narrative to any sort of understanding, not just legal reasoning. In his Introduction to Narrative, H. Porter Abbott asserts that narrative is present in almost all human discourse and notes Fredric Jameson's description of narrative as "the central function or instance of the human mind."26 Abbott states that whether such assertions stand up to scrutiny, people "engage in narrative so often and with such unconscious ease that the gift for it would seem to be everyone's birthright."27
As described by Gerald Lopez, lawyerly problem solving, which involves persuading others to change the world in ways that are closer to what we desire, is "simply [one] instance of human problem-solving."28 Lopez asserts that human beings think about social interaction in story form because it helps us interpret the everyday world and "carry out the routine activities of life without having to constantly analyze or question what we are doing."29 Persuading people to help solve a problem requires familiarity with the "stock stories"30 that people subscribe to and an ability to manipulate the stories to tell a plausible and compelling story that moves the person to assist us.31 As noted earlier, Catherine MacKinnon states that narrative is compelling because of its peculiar capacity to appropriate reality.32 These authors suggest that by tapping into this fundamental method of understanding and manipulating social interactions, lawyers rally an audience to their side with a powerful persuasive tool. Unfortunately, in addition to assisting an audience to understand that one version of events is more accurate than another, narrative can also validate a version of events that does not exist.
In one sense, of course, all stories are constructed and no story is true,33 but this article adopts the position as articulated by Abbott that if a narrative identifies itself as nonfiction, we expect it "to convey as best it can the truth of actual events."34 As Catharine MacKinnon puts it, "[t]his may be embarrassingly non-postmodern, but reality exists."35 This article assumes that reality exists and that law students and lawyers have an ethical obligation not to stray too far from it, particularly when engaging in narrative representations. This article also assumes that while stories are normally told from a certain perspective and are therefore all deceptive to a degree,36 there are ethical limits on narrative that can be articulated and coherently applied.
III. The Necessary and Multi-Faceted Connection Between Legal Narrative and Legal Ethics
A. Narrative and Ethics in Professional Regulation
Because narrative has the peculiar capacity to appropriate reality, its potential for abuse is troubling. In addition to the scholarly objections already noted, concern about the misuse of narrative has been implicitly acknowledged in many common law systems of professional regulation. In the context of litigation, professional regulations normally impose duties of candor.
The American Bar Association Model Rules of Professional Conduct Rule 3.3, "Candor Toward The Tribunal," prohibits among other things making a false statement of fact or law to a tribunal.37 In Singapore, rule 56 of the Legal Profession (Professional Conduct) Rules, "Not to mislead or deceive Court," states that an "advocate and solicitor shall not knowingly deceive or mislead the Court, any other advocate and solicitor, witness, Court officer, or other person or body involved in or associated with Court proceedings."38 Rule 59 of the Legal Profession (Professional Conduct) Rules, "Facts, arguments and allegations," more specifically states that an
advocate and solicitor shall not contrive facts which will assist his client's case or draft any originating process, pleading, affidavit, witness statement or notice or grounds of appeal containing—(a) any statement of fact or contention (as the case may be) which is not supported by his client or instructions; (b) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonable credible material which as it stands establishes a prima facie case of fraud; or (c) in the case of an affidavit or witness statement, any statement of fact other than the evidence which in substance according to his instructions the advocate and solicitor reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given orally.39
In Malaysia, the ethical rules are similar. There, the Bar Council, with the approval of the Attorney General's Chambers, issues the rules of professional conduct and etiquette pursuant to the Legal Profession Act of 1976.40 The Legal Profession (Practice And Etiquette) Rules of 1978 state in relevant part that an advocate and solicitor shall not "practice any deception on the Court"41 or "refer to any facts in the case which he is not in a position to prove."42
In Hong Kong, every barrister, whether practicing or otherwise, must comply with the provisions of the Code of Conduct of the Bar for the Hong Kong Special Administrative Region.43 In the section on Conduct in Court, paragraph 130 of the Code of Conduct provides that a barrister "must not knowingly deceive or mislead the Court,"44 and paragraph 146 provides that when defending a client on a charge of crime, a barrister must not "provide or devise facts which will assist in advancing his client's case."45
The fact that lawyers are advocates who pursue outcomes favorable to their clients, and not necessarily to society at large, is commonly understood if not always valued. But when the partiality of advocacy is combined with the ability of narrative to portray a "true" state of affairs, the full potential for misuse of persuasive argument becomes clearer. It is arguably the presence of narrative and its impressive potential to deceive, combined with the type of advocacy at work in common law legal systems, which has produced ethical restrictions on lawyers' communications with the court in many common law jurisdictions around the world.46
In addition to arising in professional regulation and academic research, the ethical dimension of narrative has received limited attention in legal education, primarily in clinical scholarship regarding what role clients should play in deciding whether and what story should be told about them.47 There has also been limited discussion of the ethical limits on a lawyer's use of narrative when advising a client,48 in legal argument,49 or even in law blogs.50 It would seem as though awareness of ethics in legal narrative has been just below the surface. The connection warrants considerably more attention, particularly in legal education.
* © Helena Whalen-Bridge 2010. Assistant Professor, Faculty of Law, National University of Singapore.
1 The phrase "lost narrative" is generally attributed to Jean-Francois Lyotard, The Post Modern Condition: A Report on Knowledge 41 (Geoff Bennington & Brian Massumi trans., U. Minn. Press 1984) and associated with Roger Bromley's Lost Narratives: Popular Fictions, Politics, and Recent History (Routledge 1988), in which Bromley reviews the ways in which forms of media such as popular fiction shape collective consciousness.
2 The author supervised and taught Legal Analysis, Writing & Research ("LAWR"), a compulsory year-long course in legal skills for first-year students at the National University of Singapore Law School Faculty of Law. For a description of the first semester of LAWR, see Natl. U. Sing., Legal Analysis, Writing and Research I, http://law.nus.edu.sg/current/course/ courses_desc.asp?MC=LC1006&Sem=1 (last updated Jan. 28, 2010), and for a description of the second semester, see Natl. U. Sing., Legal Analysis, Writing and Research II, http://law.nus.edu.sg/current/course/courses_desc.asp? MC=LC1007&Sem=2 (last updated Jan. 28, 2010).
3 This article focuses on the connection between legal narrative and legal ethics, primarily in the context of Asian law schools in the Commonwealth. These jurisdictions have common law legal systems and provide a useful basis for comparison to other jurisdictions with common law legal systems, to which reference will occasionally be made. As used in this article, "Commonwealth" refers to the Commonwealth of Nations, a voluntary association of 54 countries that "support each other and work together towards shared goals in democracy and development." See Commonwealth Secretariat, The Commonwealth, http://www.thecommonwealth.org/Internal/191086/191247/the_commonwealth/ (last accessed Feb. 26, 2010). Member countries in the Commonwealth of Nations were formerly colonies in the British empire, also referred to as the British Commonwealth. See id. at http://www.thecommonwealth.org/Internal/191086/34493/history.
4 Margaret Johns arguably noted a similar phenomenon in 1990 when she wrote, "[a]fter teaching legal writing for several years, I finally grasped what my students were teaching me through their questions: a legal writing course should cover the professional responsibility issues that arise in the writing assignments." Margaret Z. Johns, Teaching Professional Responsibility and Professionalism in Legal Writing, 40 J. Leg. Educ. 501, 501 (1990).
5 The definition of narrative, not to mention its place in larger developments in jurisprudence such as the Law and Literature movement, is admittedly "one of the most slippery areas of legal scholarship." Ruth Anne Robbins, An Introduction to Applied Storytelling and to This Symposium, 14 Leg. Writing 3, 8 (2008). It is also a highly controversial area. See H. Porter Abbott, The Cambridge Introduction to Narrative 13–15 (2d ed., Cambridge U. Press 2008). To address the conscious skill creation at work in teaching law students how to present facts persuasively, I am adopting Baron & Epstein's definition of narrative as "a broader enterprise that encompasses the recounting (production) and receiving (reception) of stories," as contrasted with a "story," which is "an account of an event . . . that unfolds over time and whose beginning, middle, and end are intended to resolve . . . the problem set in motion at the start." Jane B. Baron & Julia Epstein, Is Law Narrative? 45 Buff. L. Rev. 141, 147 (1997) (cited in Binny Miller, Telling Stories About Cases and Clients: The Ethics of Narrative, 14 Geo. J. Legal Ethics 1, 1 n. 4 (2000)).
6 The centrality of storytelling in the practice of law and litigation in particular has been noted by many. See e.g. J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 Leg.Writing 53 (2008).
7 Catharine A. MacKinnon, Law's Stories as Reality and Politics, in Law's Stories: Narrative and Rhetoric in the Law 237 (Peter Brooks & Paul Gewirtz eds., Yale U. Press 1996).
8 For instructional purposes, LAWR has utilized Richard K. Neumann, Jr., Legal Reasoning and Legal Writing (6th ed., Aspen Publishers 2009), which includes entries on "storytelling" and telling the client's story persuasively at 357–68. There are numerous other texts on the subject, including Steven D. Stark, Writing to Win: The Legal Writer (Main Street Books 1999), which includes a chapter on the role of narrative in argument. Practice-oriented materials tend to characterize what they do as storytelling rather than narrative.
9 An exception to the relative isolation of texts on legal narrative would arguably be found in the academic literature on narrative in law school clinical programs. See Miller, supra n. 5, at 7–30 (and articles cited therein).
10 See Philip N. Meyer, Will You Please Be Quiet, Please? Lawyers Listening To The Call Of Stories, 18 Vt. L. Rev. 567, 568 (1994) (noting that "creative practitioners are often more sophisticated about legal storytelling than many legal scholars").
11 See e.g. Legal Hermeneutics: History, Theory, and Practice (Gregory Leyh ed., U. Cal. Press 1992) (collection of essays on interpretation of legal texts).
12 The example most cited here is Susan Estrich, Rape, 95 Yale L.J. 1087 (1986), which includes a lengthy analysis of the ineffectiveness of rape laws but which begins with the following passage describing the author's own rape: "Eleven years ago, a man held an ice pick to my throat and said: 'Push over, shut up, or I'll kill you.' " Id. at 1087.
13 For a frequently cited example in this vein, see Derrick Bell, The Space Traders, in Faces at the Bottom of the Well: The Permanence of Racism 158 (Basic Books 1992), which describes an offer by aliens who promise the U.S. wealth if it will in return trade the nation's blacks.
14 Benjamin L. Apt, Aggadah, Legal Narrative, and the Laws, 73 Or. L. Rev. 943, 956 (1994).
15 Id. at 957.
16 Miller, supra n. 5, at 20.
17 Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (Oxford U. Press 1997).
18 Id. at 38.
19 Id. at 39.
20 See Apt, supra n. 14, at 956–61.
21 See generally George H. Taylor, Transcending the Debate on Legal Narrative (U. Pitt. Sch. L. Working Paper 11, 2005) (available at http://law.bepress.com/pittlwps/papers/art11/).
22 See e.g. Jeremiah Donovan, Some Off-The-Cuff Remarks About Lawyers as Storytellers, 18 Vt. L. Rev. 751 (1994); Steven Lubet, Nothing But the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Truth (N.Y.U. Press 2001).
23 Jean C. Love, The Value of Narrative in Legal Scholarship and Teaching, 2 J. Gender, Race & Just. 87 (1998).
24 Id. at 89.
25 See Estrich, supra n. 12, at 1087.
26 Abbott, supra n. 5, at 1.
27 Id.; see also Rideout, supra n. 6, at 57–59.
28 Gerald P. Lopez, Lay Lawyering, 32 UCLA L. Rev. 1, 2 (1984).
29 Id. at 3.
30 Id.
31 See id. The legitimacy of this approach is arguably demonstrated by typical teaching approaches to narrative skills, where instructors rely on student perceptions of which stories are believable and which are not—occasionally with reference to what students knew "before they started law school."
32 See MacKinnon, supra n. 7, at 237.
33 See Abbott, supra n. 5, at 22.
34 Id. at 153.
35 MacKinnon, supra n. 7, at 235.
36 See Lubet, supra n. 22, at 6; Steven J. Johansen, This Is Not the Whole Truth: The Ethics of Telling Stories to Clients, 38 Ariz. St. L.J. 961, 978–84 (2006).
37 See Model R. Prof. Conduct 3.3 (ABA 2009).
38 Legal Profession Act, Legal Profession (Professional Conduct) Rules, Rule 56 (Cap. 161, 2009 Rev. Ed. Sing.), s. 71(56).
39 Id. at Rule 59.
40 Legal Profession Act 1976 s. 77 (Malay. Act 166, reprint 2001).
41 Legal Profession (Practice and Etiquette) Rules 1978, Rule 17 (Malay. P.U.(A) 369/78) (available at http://www.malaysian bar.org.my/news_notices.html).
42 Id. at Rule 19.
43 See Hong Kong Bar Assn., The Code of Conduct of the Bar for the Hong Kong Special Administrative Region ¶ 4, http://www.hkba.org/the-bar/code-of-conduct/code-of-conduct.html (2009).
44 Id. at ¶ 130.
45 Id. at ¶ 146.
46 Steven Johansen has noted in his work on legal narrative and legal ethics that narrative inherently includes partiality, and that court systems in fact tolerate some deception in storytelling and other matters in the context of client advocacy, although lawyers are not allowed to engage in "carte blanche deception." Johansen, supra n. 36, at 961.
47 See Miller, supra n. 5, at 5 n. 24.
48 See Johansen, supra n. 36, at 961.
49 SeeMuneer I. Ahmad, The Ethics of Narrative, 11 Am. U. J. Gender Soc. Policy & L. 117 (2002) (exploring the ethical basis for refusing to incorporate racist or gender-based arguments that are in the client's interest but against the public interest). Gerald Lopez touches upon "responsible storytelling" in the lay context by noting that while threats and lies do not violate any rules of storytelling form, they "normally are considered objectionable." Lopez, supra n. 28, at 14.
50 See Anna P. Hemingway, The Ethical Obligations of Lawyers, Law Students and Law Professors Telling Stories on Web Logs, 41 The Law Teacher 287 (2007).