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Narratives Good in Legal System at Rule of Law
Narratives Good in Legal System at Rule of Law
2008, Brian J. Foley. All rights reserved. Visiting Associate Professor of Law,
Drexel University Earl Mack School of Law (20072008); Associate Professor, Florida
Coastal School of Law. This Article began as a late-added presentation at the Once upon a
Legal Time: Developing the Skills of Storytelling in Law conference, City Law School, Grays
Inn, London, United Kingdom, July 1820, 2007. I was a co-organizer of the conference. I
thank the other organizers. I thank all those who attended the talk, and my co-presenter,
Melinda H. Butler, who helped spark the ideas in this Article. I thank M.G. Piety for reviewing a draft, and for all her support, Peter Egler, Faculty Services Librarian at Drexel
Law, for great research help, Ruth Anne Robbins for her encouragement, and Steve
Johansen for strengthening the piece through his editing. I thank Dean Peter Goplerud for
the research grant that helped me write and Dean Roger Dennis for supporting my travel to
London.
1 Programme, Once upon a Legal Time: Developing the Skills of Storytelling in Law
(London, U.K., July 1820, 2007) [hereinafter Programme]. The Programme and further
information about the conference are available at http://www.city.ac.uk/law/vocational/
storytelling_in_law_.html, under the link Speakers and Abstracts.
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4 If any readers saw my presentation in London, they will recall that I said at the
time that I was truly asking this question and had no answer. Trying to answer it has been
part of the fun of writing this Article.
5 This idea can be traced to Legal Realism. Brian Leiter, American Legal Realism, in
The Blackwell Guide to the Philosophy of Law and Legal Theory 2123 (Martin P. Golding & William A. Edmundson eds., Blackwell 2005) (available at http://ssrn.Com/
abstract_id=339562). It is now considered a clich to use the clich [W]e are all realists
now. Michael Steven Green, Legal Realism as Theory of Law, 46 Wm. & Mary L. Rev. 1915,
1917 (2005) (footnote omitted).
6 There are other ways, and some of them have been tried in the law school curriculum. In writing this Article, I discovered a small body of literature among Evidence scholars about teaching Evidence, Proof, and Facts (EPF). These scholars themselves acknowledge that their movement has not caught on. I will address EPF below. See infra sec. IV(A).
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Improving Law
Generally, improving the law through storytelling often encompasses the idea of locating the stories of outsiders, people
whose stories are otherwise not included in lawmaking and adjudication. I agree with the idea and have a work-in-progress that
falls into this category.12 I specifically made this point about outsiders stories in October 2006, speaking inside a maximumsecurity prison to a roomful of men convicted of murder and sentenced to life-without-possibility-of-parole sentences as juveniles
they must get their stories of rehabilitation, of the unfairness, the
waste, the excessiveness, the inaptness, of their sentences, out before a general public and legislators. Ultimately, when the public
sees that the punishment does not fit the criminal, it might move
to change the punishment. So far, the public has seen only the
crime. It must meet the criminal. Stories can accomplish that.13
The papers that I categorize as improving the law seem political in the sense that they discussed outsiders who are excluded
12
Indicted Men Tell No Tales: When Criminal Laws and Evidence Rules Dont Let
Defendants Tell Their Story (unpublished ms.) (on file with Author).
13 A good use of storytelling advocacy can be seen in Human Rights Watch, The Rest of
Their Lives: Life Without Parole for Child Offenders in the United States (Oct. 2005) (available at http://www.hrw.org/reports/2005/us1005/) (presenting, inter alia, stories of child
offenders serving these sentences).
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because of a lack of political power, a term I use broadly. For example, by lack of political power, I mean people who are excluded
or marginalized because they fall outside of the mainstream and
could not hope to receive anything like considered understanding
from many judges or juriesor the mainstream legal academy.
Notable in this regard was a presentation that addressed rape victims who are involved in multi-partner sexual relationships.14 One
assumes that such victims run the risk of becoming victims, at
least in less tolerant jurisdictions, of societal prejudices such as
those modern rape shield laws work to eliminate by preventing
criminal defense lawyers from inquiring into the victims sexual
past.15 (Of course, canny lawyers do their best to work around
these restrictions.) During the same session was a presentation
concerning mothers who kill their own infant children that sought
to understand, not merely condemn, these women.16 There were
also presentations on women victims of sexual harassment,17 battered womens syndrome,18 women involved in custody battles,19
and the forgotten history of three African-American women slaves
who were forced into being subjects for experimental gynecology, a
presentation that was self-described as applying a Critical Race
Feminist perspective.20 There was a presentation on advocating for
children using storytelling, specifically focusing on point of view
and voice.21
Other presentations addressed: criminal defenses, and how in
general the best defense is a good alternative narrative;22 storytel14 Michele Alexandre, Presentation, Girls Gone Wild and Rape Law: Ensuring an
Unbiased Appreciation of Reasonable Doubt When the Victim Is Non-Traditional (London,
U.K., July 19, 2007).
15 See e.g. Fed. R. Evid. 412.
16 See Julie Kalish, Presentation, Crime & Punishment, The Use of Narrative and
Storytelling in Cases of Maternal Infanticide (London, U.K., July 19, 2007).
17 See Margaret Moore Jackson, Presentation, Confronting Unwelcome: Teaching
Conscious Decision-Making about Case Theory to Tell the Stories of Sexually-Harassed
Women (London, U.K., July 19, 2007).
18 See Sara R. Benson, Presentation, Beyond Protective Orders: Clinics and Social
Workers Facilitate Battered Womens Stories (London, U.K., July 19, 2007).
19 See Linda L. Berger, Presentation, Metaphor and Narrative in Family Law Disputes
(London, U.K., July 19, 2007).
20 See Deleso Alford Washington, Presentation, In Search of the Narrative Behind the
Narrative: Critical Race Feminism and the Pursuit of Cultural Competency in Medical
School (London, U.K., July 20, 2007).
21 See Lisa Kelly, Presentation, Telling Childrens Stories (London, U.K., July 19,
2007).
22 See Kevin Jon Heller, Presentation, The Cognitive Psychology of Innocence (London,
U.K., July 19, 2007) [hereinafter Presentation]; see also Kevin Jon Heller, The Cognitive
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fraud the insurers.30 The body they claimed was Hillmons was,
according to the insurers, that of another man, Frederick Adolph
Walters.31 To prove this, the companies offered into evidence a letter from Walters to his fiance.32 In the letter, Walters said he had
met a man named Hillmon and was going with him to work in
starting a sheep ranch.33 Walters was never heard from again.34
The insurers also offered the testimony from Walterss sister, who
had received a similar letter but could not find it.35 The insurers
offered the letter and the testimony to prove that Walters had actually acted in accordance with his stated intention and had accompanied Hillmon.36 The inference was that Hillmon had killed
Walters, and that it was actually Walterss body in the grave.
Hillmon at some point would swoop in and share in the proceeds
from the life insurance policy with his wife.
The letter and the sisters testimony, however, were pure
hearsay. There was no exception that would allow them to be entered into evidence, and the trial court had excluded the letter and
the sisters testimony. However, the Supreme Court held that the
letter was admissible.37 In doing so, the Court created a new exception to the hearsay rule for future intentions in admitting the
letter and stated that it was up to the jury to decide whether the
letter was credible.38 The Court must have believed that the case
was one of insurance fraud to go to such lengths, according to Pro30
Id.
Id. at 287.
32 Id. at 288289.
33 Id.
34 Id. at 287288.
35 Id.
36 Id. at 294295.
37 Id. at 296300.
38 Id. This rule is now formalized as part of Federal Rule of Evidence 803(3). Justice
Cardozo stated that Hillmon marks the high water line beyond which courts have been
unwilling to go, and that [d]eclarations of intention, casting light upon the future, have
been sharply distinguished from declarations of memory, pointing backwards to the past.
There would be an end, or nearly that, to the rule against hearsay if the distinction were
ignored. Shepard v. U.S., 290 U.S. 96, 105106 (1933). Courts differ as to whether they
distinguish between admitting statements of future intention as evidence that the declarant
later acted in accord with that intent versus admitting them to prove that another person
(non-declarant) acted in accord with the declarants stated intention. See Coy v. Renico, 414
F. Supp. 2d 744, 763774 (E.D. Mich. 2006) (discussing Hillmon and collecting cases in
holding on habeas review that murder victims statements of intention to meet with defendant at time of murder were properly admitted against defendant under Michigan Rule of
Evidence 803(3)). Some courts will admit a statement of future intention against a nondeclarant only with corroborating evidence. See e.g. U.S. v. Best, 219 F.3d 192 (2d Cir.
2000).
31
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Improving Lawyering
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for Thinking Like a Filmmaker: Using Lars von Triers Dogville as a Model for Writing a
Statement of Facts, 14 Leg. Writing 171 (2008).
47 See Eileen A. Scallen, Presentation, The Art of Storytelling in Wellmans The Art of
Cross-Examination (London, U.K., July 20, 2007).
48 See Kenneth D. Chestek, Presentation, The Plot Thickens: The Appellate Brief as
Story (London, U.K., July 20, 2007); see also Kenneth D. Chestek, The Plot Thickens: The
Appellate Brief as Story, 14 Leg. Writing 127 (2008).
49 See Michael R. Smith, Presentation, Stock Stories and the Power of the Parenthetical: Exploring the Cognitive Dimensions of Illustrative Parentheticals in Legal Writing
(London, U.K., July 20, 2007).
50 See Rachel Croskery-Roberts & Grace Tonner, Presentation, Telling Stories to a
Jury: Using Our Understanding of Jury Decision-Making to Enhance the Ability to Persuade
at the Moments When Arguments Are More Memorable (London, U.K., July 19, 2007).
51 See James R. Holbrook, Presentation, Transforming Conflict Narrative into Dialogue in Performative Negotiation (London, U.K., July 20, 2007).
52 See Kelly, supra n. 21.
53 See Heller, Presentation, supra n. 22.
54 See Caplow, supra n. 23.
55 See Foley & Robbins, supra n. 10, at 473475, 483 (providing examples of storytelling technique for corporate clients and criminal defendants); see also Anthony Kronman,
Leontius Tale, in Laws Stories: Narrative and Rhetoric in the Law 54, 54 (Peter Brooks &
Paul Gewirtz eds., Yale U. Press 1996) (Some stories have good effects and others bad ones.
Some stories strengthen good practices and good institutions, and others do the opposite.
Moreover, stories do not contain within themselves the criteria for distinguishing the good
ones from the bad.).
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Id.
Id.
65 See Dept. of Just. & Atty. Gen., Queensland Government, Queenslands Courts System: The Murri Court, Fact Sheet C11 (May 2006) (available at http://www.courts.qld.gov
.au/Factsheets/M-FS-MurriCrt.pdf) (discussing one of these sentencing courts and stating
that punishments may be tailored to the issues relating to the offending behaviour in the
best interests of the community).
66 Auty et al., supra n. 27 (specifically, the abstract for Sarah Geberts portion of the
presentation).
67 Though retribution might be accomplished if the court, victim, police, prosecutor,
and others become convinced that the offender suffers from remorse or shame; this suffering
could be argued to be productive suffering, a corrective suffering that spurs the offender
onward toward a law-abiding, productive life.
68 Auty et al., supra n. 27 (specifically, the abstract for Daniel Briggss portion of the
presentation).
64
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the putative need for retribution. Such sentencing seems more effective than the mandatory minimum, three-strikes-and-youre-out
sentencing that is emblematic of United States criminal punishment. Much American sentencing is story-less: the offenders
story will likely never be uttered in court, or will fall on deaf
earshe did the crime, he will do the time, no matter what.69
These Australian courts appear to reflect the resolution of a
political struggle. The stories of outsiders were heard.
B. Presenters and Participants: Point of View
We know from storytelling that character and point of view
matter and cannot be overlooked here. Participants at the conference shared several traits.
1.
Skills Teachers
Many Conference participants were legal skills teachers (clinical and legal methods). Skills teachers sometimes find themselves
at odds with casebook faculty. The gist of the critique from skill
professors is that casebook faculty need to do more skills training
(including storytelling). There is good support for this critique in
the famous 1992 MacCrate Report70 and, more recently, the Carnegie Foundation for the Advancement of Teachings report.71 This
focus on skills versus doctrine, doing over knowing (I admit to
oversimplification arguendo) can place skills professors in the role
of outsidersand criticsin the academy. That is a political position. At its extreme, this can be seen as a war over the hearts and
minds of law students, waged between casebook and skills professors, though, happily, the Carnegie Report and probably most skill
professors propose more of a mixture of traditional and newer
pedagogies, not razing the Ivory Tower. Notably, this battle for
balance between doctrine and skills is not new. According to the
Carnegie Report, Judge Jerome Frank, a prominent legal realist,
69 See e.g. Ewing v. Cal., 583 U.S. 11 (2003) (upholding Californias three-strikes,
twenty-five-years-to-life imprisonment law for man with long criminal history who was
convicted of for stealing three golf clubs worth $399 each).
70 ABA Sec. Leg. Educ. & Admis. to the B., Legal Education and Professional DevelopmentAn Educational Continuum, Report of the Task Force on Law Schools and the
Profession: Narrowing the Gap (ABA 1992).
71 William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of
Law (Jossey-Bass 2007).
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But for the most part, legal education struggled to escape the
trade school stigma.73
In addition there is often the lower salary, less job security,
and lower status that distinguish skills professors from casebook
faculty.74 These distinctions can end up politicizing skills professors, with lasting effects. I attribute many of my political views to
having spent six years in the pink ghetto of legal writing. Those
years were enlightening to say the least; this was the first time I
had been discriminated against, treated as a member of a subordinate class. A friend teaching legal writing as part of a prestigious
law schools program recently confided in me that as a result of his
experiences, he now shares my political leanings.
There were several casebook professors at the conference, but
it is fair to say that they were somewhat untraditional. Some, including me, teach or have taught skills.75 Others have transcended
traditional teaching and scholarship. For example, Garret Epps
teaches a law school course in fiction writing. Marilyn Berger creates documentaries as scholarship and teaching tools. Mimi Wesson practices what could be called legal archeology. Epps and Wesson have published novels.
2.
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I am sure there are clinicians who are on the right-hand side of the political spec-
trum.
77
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Outsiders in General?
Less pure law. Below I discuss the fact-law distinction as a pecking order phenome-
non.
79 Which can make one an academic outsider, perhaps. See Kathryn Abrams, Hearing
the Call of Stories, 79 Cal. L. Rev. 971, 977 (1991) (Not every law school numbers among its
faculty either scholars who use or scholars who read narratives, so there may be no one
present who can explain the objects or innovations of the form. Even those who can offer
such explanations may find it difficult to do so ab initio, because of the time pressures and
the contentiousness that often surface in this context. Here, as in other areas of academic
life, the absence of full public discussion of innovation tends to favor those forms of scholarship that are already established, with palpable consequences for the professional lives of
innovators.).
80 Melinda Butler urged this in her portion of the presentation.
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appellate opinions students read for casebook classes, the facts are
already provided, served up painlessly and authoritatively as having been found by the jury. Indeed, the facts sections of opinions
in many casebooks are often horribly truncated or even outright
eliminated.85 The material used by the fact-finder is not included.
Students never see how the premises for this legal argument were
actually created, that is, how the facts in the opinion were found.
Students (and indeed their professors) reading the opinion never
see directly the influences from advocates and parties, and the
other, external influences of the sorts discussed above (politics,
religion, social class, etc.). Indeed, this coloring may have influenced the jury or judge in ways these decision makers do not understand themselves.86 But casebook courses are silent as to these
matters. As William Twining wrote, rarely is fact finding as such
directly studied in a systematic, comprehensive, and rigorous
manner.87 How juries actually find facts is not even taught in
most Evidence courses;88 if students glimpse this process at all,
85 In law school I remember how revelatory it was in my first semester one day to go to
the library and pull a case and read its factsin one instance it made a case from our casebook that a professor had called very complicated, very complex seem fairly straightforward. The complication resulted from the fact that many facts were excised.
86 Books and articles on judicial opinion writing give limited guidance on how judges
find facts. See e.g. Ruggero J. Aldisert, Opinion Writing 5460, 154160 (West Publg. 1990);
Joyce J. George, Judicial Opinion Writing Handbook 221230 (5th ed., W.S. Hein & Co.
2007); Eileen Kavanaugh, Robert Traver as Justice VoelkerThe Novelist as Judge, 10
Scribes J. Leg. Writing 91 (20052006); George Rose Smith, A Primer of Opinion Writing,
for Four New Judges, 21 Ark. L. Rev. 197, 204, 210 (1967); George Rose Smith, A Primer of
Opinion Writing for Law Clerks, 26 Vand. L. Rev. 1203, 12041205 (1973); Nancy A. Wanderer, Writing Better Opinions: Communicating with Candor, Clarity, and Style, 54 Me. L.
Rev. 47, 5658 (2002); Daniel E. Wathen, When the Court Speaks: Effective Communication
as a Part of Judging, 57 Me. L. Rev. 449, 453 (2005) (trial court judge in writing opinion
should focus more on factual findings than on legal reasoning).
87 William Twining, Taking Facts Seriously, 34 J. Leg. Educ. 22, 40 (1984) [hereinafter
Seriously]; see also William Twining, Taking Facts SeriouslyAgain, 55 J. Leg. Educ. 360
(2005) [hereinafter Seriously Again] (lamenting that the earlier article had not brought
about the reforms it proposed).
88 As Scott Howe wrote,
The typical evidence course teaches little about the overall process [of factfinding]. Its narrow focus suggests that facts essentially leap from testimony
and exhibits. The misleading message of the typical evidence class also frequently goes uncorrected by other courses. A few students may gain a sense of
the complicated nature of fact finding through clinical or simulation classes.
However, these courses typically have small enrollments, and in any event,
usually cannot focus heavily on the analytical and psychological dimensions of
proof. Law schools have sometimes instituted classes focusing on the theoretical
analysis of the proof process. The most notable, perhaps, was Wigmores course
at Northwestern, which was based on his relatively unheralded book on judicial
proof. These scattered attempts have not spread widely. The result is that law
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See Nancy S. Marder, Juries, Justice & Multiculturalism, 75 S. Cal. L. Rev. 659
(2002).
99 For that matter, only a small percentage of cases ever reaches a jury, given that
most are resolved through settlement or plea bargain. See infra sec. IV(B).
100 Fed. R. Evid. 606(b) ([i]nquiry into validity of verdict or indictment). There is a
significant amount of scholarship and studies on jury decision-making. The National Center
for State Courts has compiled a list. See NCSC, Jury Decision Making Resource Guide,
http://www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=JurDec (last modified
May 15, 2008).
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tional decision. Similarly, we are not necessarily privy to the appellate judges thinking. The opinion that the judge writes, if any,
to justify her decision might in some cases be taken with a grain of
salt as quite literally self-justifying and perhaps even self-serving
or self-deludingor even simply disingenuous. It characteristically
does not describe the drama that might have taken place among
the judges on the panel, or even among their squads of law clerks.
Indeed many lawyers have probably experienced that sense in
cases they have triedespecially in ones they have lost, which
goes to show how, after a full airing of the facts and law, people
may still disagree over them!
D. Factual Realism and Storytelling
Storytelling is a way of controlling, or at least taming, factual
indeterminacy. The main focus in ALS is in helping shape the
jurys construction of the facts of the case, that is, how to convince the jury to see the facts in a particular way: our and our clients way, which often requires creating a story. ALS recognizes
that the story is a powerful tool of persuasion, a powerful way to
achieve control over and to present facts (and opinions and other
external influences). Indeed, stories can take advantage of these
externalities such as by invoking stock stories101 and tapping into
myths102 and stereotypes.103 Storytelling can give a skilled advocate some control over the determination of facts and hence of the
outcome of a case: If an advocate can organize a clients facts into a
compelling story, then she just might have a chance. The jury
gains a cognitive frame for looking at the conflict before them.104
This, of course, is nothing new. Legal storytelling (and law itself) fits well within the broader framework of persuasion and the
study of rhetoric.105 Michael Smith reminds us that the ancient
rhetoricians unpacked persuasion into the concepts of logos, pa101
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120
Id. at 107.
Id.
122 Id. at 122123.
121
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123
Id. at 9091.
Twining, Seriously Again, supra n. 87, at 360.
125 May you live in interesting times is seen (perhaps incorrectly) as an ancient Chinese curse. See N. of Boston Lib. Exch., Inc., NOBLE Reference Files, May You Live in
Interesting Times, http://www.noblenet.org/reference/inter.htm (accessed Feb. 25, 2008).
126 Jethro K. Lieberman, The Art of the Fact, 5 Leg. Writing 25, 26 (1999).
127 Id.
128 See id. at 3334.
124
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Twining, Seriously Again, supra n. 87, at 362 (footnotes omitted) (emphasis added).
See supra sec. II(A)(4).
145 For a discussion of problem-solving courts, see Michael C. Dorf, Legal Indeterminacy
and Institutional Design, 78 N.Y.U. L. Rev. 875, 937954 (2003).
144
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149
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But the law could benefit from the full use of our imaginations
that storytelling requires.
V. CONCLUSION
The increased focus on facts that ALS represents comes in
large part from expanding law faculties to include skills professors, as well as providing them the resources (and in some cases,
the requirement) to write about their interests, to reflect on the
knotty questions of law and pedagogy that keep them up at night
or wake them early in the morning. Storytelling has long been recognized as a powerful tool for exerting control over facts (real or
fictional), or, more accurately, control over the indeterminacy of
facts. Casebook professors have long had the comfort of canons of
construction, rules about identifying and valuing precedent, legal
theory, and the freedom to address policy concernsand the freedom, in treating law as indeterminate, to dazzle with these tools.
Perhaps storytelling serves this role for skills professors. Our challenge going forward is to continue to examine the uses and implications of storytelling in courts, in alternative dispute resolution,
in negotiations and transactions, and in our classrooms.
Perhaps a greater challenge is for us to consider that storytelling may not be the last word or final answer to the questions
raised by the broader challenge of factual indeterminacy. For that
reason, I suggest that we see storytelling, and ALS, as a subset of
a broader idea, Factual Realism. The time has come for the entire
legal academy to address realistically the factual indeterminacy
that has always been at the heart of law. Law teaching can no
longer always be neat, clean, and fact-free. It must be messy, like
law and life itself.