Law in Contemporary Society

Control the Narrative

I believe that the way in which professors teach class and grade exams encourages students to focus less on the stories behind cases and more on creating useful generalizations that they can deploy under time pressure to apply to exam fact patterns. This is problematic because story telling is as integral a part of effective lawyering as is issue-spotting. Law schools should provide more opportunities for students to practice their story-telling skills; failing to do so might prove damaging, especially if we are the future of the law.

At the beginning of law school I learned that each case had a unique story behind it. Professors forced us to recount the facts of a case in detail before moving on to the legal issues in play. You might say: "and then the plaintiff cut his hand on the gear of the machine," and the professor would promptly correct: "you mean he cut his arm, right?" Initially this seemed tedious to me. His arm, his hand, -- who cares -- let's get to the interesting part - the reasoning. However, I soon changed my opinion. The more cases we studied, the more important the factual details became. Courts often decided differently two cases with seemingly identical facts. But a closer comb-through usually brought to light a minuscule factual distinction of monumental importance. By continually going through this exercise I came to recognize that each case was different, albeit sometimes only slightly.

However, as classes progressed, the tone that professors took towards case-facts changed. At the beginning of the semester my Property professor was quite sensitive to the idiosyncrasies of the epic family rivalry surrounding Pierson v. Post. In contrast, by the end of the semester the professor had a penchant for repeating the word "Less" while students recited the facts until they reduced the entirety of the fact pattern to one sentence. It seemed as though the professor was recasting his initial focus on the particularities of each case as something he does when introducing students to the law, but not a practice he continues once we get the hang of it. It seemed to me as though the professor was telling us that the facts of the case matter less for an advanced practitioner.

Moreover, as exams loomed and we began to prepare outlines and do practice exams, it became clear that in order to receive good grades, one should spend less time studying the story behind each case and more time thinking of useful ways to generalize about the case so as to apply generalizations to new sets of facts. The subtle distinctions between the circumstances surrounding Hawkins' hairy hand and those of the Peevyhouses' coal deposits seemed to matter little for exam writing. As a result, cases that were once stories became bite-sized propositions for use as one sentence citations on an exam. "Peevyhouse establishes that when cost of cover would grossly overcompensate the plaintiff, the measure of expectation damages should be the diminution in value." People forgot that the Peevyhouses' farm was a family farm, and was probably of much greater personal value than the $300 the court eventually rewarded them in damages. The problem is that a student who wishes to do well on her exam has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach.

After a year of law school I find myself under-skilled in working with the stories that form the foundation of the cases we read. This is disheartening, as stories can bridge the gap between different people’s world views, and help us understand what life is like for others. Story telling can also be deconstructive. Howard Zinn’s A People’s History of the United States is a great example of someone retelling a story to expose a history of oppression and violence. Stories can also be a form of healing. Story telling can provide an opportunity for people to escape the plight of having to suffer in silence. Stories can put a name to a pattern of discrimination and can as a consequence serve as a rallying point for resistance. Controlling the narrative in a trial is a powerful tool of legal advocacy. Anyone following the Trayvon Martin story can tell you that. I wish we spent more time in law school thinking about finding the stories in cases, and telling the stories that constitute our life experiences. I think it would make us more compassionate counselors and more powerful advocates.

There are a few ways that law schools could make an immediate impact on this deficiency. The first is of course for students to stop caring so much about grades. In addition, there are a few ways that law schools can facilitate students to practice their story-telling. The first is by easing exam time pressure. Note the difference in approach between the memoranda/briefs that we wrote in LPW in comparison to exam answers. I found myself spending quite a bit of time contemplating the factual distinctions between the relevant cases when I prepared my LPW submissions; put differently, it is not that the stories behind cases are irrelevant to legal analysis, it is just that there is no time on exams to contemplate them. Second, exams could ask different types of questions then they do currently. Consider the following sample questions: "What is the best argument for why Peevyhouse was wrongly decided?" "Present the facts in a light most favorable to the defendant." "What are some factual issues that the fact pattern fails to resolve that, if you represented the plaintiff, you would want to explore during discovery, and why?" These are questions that one would never see on a contemporary exam but are relevant to testing mastery of the material as well as preparing law students for the tasks we will face upon graduation. These are just starting ideas but I think they highlight that a solution might not be too difficult to implement and would go a long way in improving our legal education.

Jared and Skylar, thank you for your comments and edits. I incorporated them to the above draft. I left Rohan's comments below this draft because, while I think that they are important, they address a similar but distinct issue, and I do not have space to incorporate them into my own writing.

-- PrashantRai - 09 Jul 2012

Hi Prashant,

Thanks for articulating this important insight.

I think this paper would benefit from a bit of Frank's skepticism about the fact-finding or "story-constructing" process - I'm currently working on a habeus petition opinion for a federal judge, and am finding it extremely depressing because the case story - upon which I am expected to provide a recommendation about whether the petition be granted or denied and have therefore spent days trying to understand - is constructed upon vague and conflicting memories recounted by people with dubious credibility. Consequently, I find myself playing the role of amateur historian, attempting to make light of various primary sources and learning from while simultaneously remaining skeptical of the various secondary narratives provided by the witnesses, respective counsel and the judge. Even the thousands of pages of transcripts I pore over are inconclusive indications of what actually took place at trial (one of the issues relates to ineffective counsel), reinforcing both the limitations of written narratives and Eben's insight that what remains unsaid is often more important than what is said.

Another idea that immediately struck me from your paper is the importance of controlling the narrative not only in legal advocacy, but in writing the history of the case as decided. After reading a number of my judge's old habeus opinions, I've noticed that most outcomes can be easily inferred from the style of the case background itself. However, during the process of writing my own case background, it's very clear that certain word choices at various points can add up to painting radically different pictures of a case without either being "inaccurate" or necessarily requiring an alternative outcome (although they may subtly suggest it!). These often agenda-driven word choices are then largely ignored during doctrinal analysis in law school, so that we tend to ignore the persuasive difference between recounting a particular choice as "a 90% chance of success" and "a 10% chance of failure" despite clear evidence that such differences affect inferences drawn by the reader. Add to the mix the implicit and often unintentional pressure placed on judges (and poor interns!) to reach decisions that fit with the expectations of the profession and society - say, not to uphold too many borderline-case habeus petitions - and you have both the means and motive for injustice through controlling the narrative of the decision.

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r13 - 22 Jan 2013 - 20:10:08 - IanSullivan
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