lawyer as storyteller
James R. Elkins
Assignments Archive
Assignment1
Jerome Bruner, Making Stories: Law, Literature, Life 3-13 (Harvard
University Press, 2002)
Sam Schrager, The Trial Lawyer's Art 1-16 (Temple University
Press, 1999)
"Introductory notes on narrative jurisprudence"
[distributed on the first day of class]
Portfolio Writing: Tell a story of how you found your way to this course.
Portfolio Writing2: Tell a story of how you found your way to law school.
[For commentary on the recommended Portfolo Writings, see: Portfolio Writings]
Assignment2
Bruner, pp. 13-62
[Bruner discusses, at some length, Joseph Conrad's "The Secret Sharer," -- pp. 17-20 -- and it's a story worth reading. [online text of "The Secret Sharer"]
Gerry Spence, Win Your Case 85-96 (New York: St. Martin's Press,
2005)
Portfolio Writing3: What do you find in Jerome Bruner's Making Stories about stories and how you might use them as a lawyer that you think worth exploring?
Portfolio Writing4: One way you might want to write about "the lawyer as storyteller" is by reflecting on how legal education engages, or fails to engage, your story sensibilities and imagination.
As background for this portfolio writing, you might want to read:
Storytelling Across the Curriculum
Legal Storytelling--Reflective Writing Across the Curriculum
Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics
Assignment3
Jerome Bruner, Making Stories: Law, Literature, Life 63-107 (Harvard
University Press, 2002)(on the "narrative creation of self" and a return
to the question, "so why narrative?") Bruner' introduces what will follow
in the question that he poses early in the book: "[W]hat shall we make
of the endless forms of narrative through which we construct (and maintain
a self)?" [14].
Web Resources: I encourage you to begin using the Narrative
and Story Resources page of the course website
Portfolio Writing5: With so much attention to stories and narratives in the academic disciplines and in the professions, one would expect opposition. In this writing you might try to use what you've learned from Jerome Bruner and from what you already know about stories to respond to the critics.
For one critic's response to the Bruner reading, and our consideration of what I have called the ubiquitous claim for stories--stories are everywhere and we can't get away from them and we can't live without them, and we never have--see British philosopher Galen Strawson's review of the Bruner book that appeared in The Guardian (January 10, 2004)[on-line text] [Prof. Elkins's notes on the Strawson review]
Assignment4
For
Class Discussion (February 15): We'll work with the packet of readings
you were given on "narrative medicine." Consider this question:
What does the turn to narrative in medicine tell us, by way of translation,
about the legal profession, the practice of law, and the use of narratives
in our work and our lives as lawyers? Can you rewrite Rita Charon's descriptions
of "narrative medicine" as a prolegomenon for "legal storytelling"?
Instructor's summary of the narrative
medicine readings
In my extractions from the assigned readings for the Narrative
Medicine webpage, I have drawn upon several Rita Charon articles that
were not assigned reading. These articles can be found at: Bibliography
(the bibliography consists of the writings of Rita Charon and her colleagues
in the Columbia narrative medicine program). Charon repeats and expands
on some of her central ideas in these articles. You may find them helpful
as I do.
Assignment5
For this assignment, assume that you are an archaeologist digging
at the the ruins of a large site known to have been frequented by lawyers.
There have been many archaeological excavations of other lawyer sites,
and now, mounting evidence suggests that lawyers, a good many of them
at least, were fond of stories and made use of stories their work. What
you want to do now is see if you can, by way of the shards and remains
you find on various websites, reconstruct what it was that lawyers were
doing in their "turn to stories."
For this class and this exercise in legal storytelling archaeology, please print the following:
Once Upon a Legal Story, Applied Legal Storytelling Conference, 2009
Kenneth D. Chestek -- law school profile
Table of contents [David R. Papke (ed.), Narrative and the Legal Discourse (Deborah Charles Publications, 1991)]
Cover, Current Issue, Journal of the Legal Writing Institute
Storytelling Conference Draft Schedule [Applied Legal Storytelling Conference, 2007]
What
follows is a brief accounting of these web artifacts and how I have begun
to try to put them together, along with other web-based resources, to
help us figure out exactly what legal storytelling is and how we might
think of ourselves as lawyers with "narrative competence" (to
use an idea of Rita Charon's).
The first piece of evidence you locate is a schedule for a program. It appears that lawyers and legal academics have gathered for a second time for an Applied Legal Storytelling conference at Lewis & Clark Law School. What you want to do is see what kind of clues the applied legal storytelling conference program will offer in your understanding of the lawyer as storyteller. [Once Upon a Legal Story, Applied Legal Storytelling Conference, 2009] [The Legal Scholarship Blog reports the following topics for presentation at the conference: "using storytelling in litigation or transactional work or in legislative processes; the process of creating compelling legal stories as part of best practices; examining current models used to teach storytelling skills in education and/or practice; narrative and negotiation; the place of storytelling in legal reasoning; differentiating between stories and narratives and the uses of each; comparative storytelling in legal systems; the ethical limits of storytelling, whether with clients lawyers or judges."]
Drawing on what you learn from the program, you find that one of the presenters at the 2009 applied legal storytelling conference was Kenneth Chestek. The name is not familiar to you. His presentation at the conference was titled, "Argumentation + Narration = Persuasion: An Empirical Study of Storytelling in Appellate Brief Writing." This sounds promising, as you know that lawyers are often concerned with argument and one place their arguments are found is in appellate briefs. You have already found some documents on storytelling in appellate briefs and you know that this is something that you'll want to eventually pursue. [Narrative and the Appellate Opinion] [The Appellate Brief as Story] What you find, perhaps to no great surprise, is that one of the documents you've located, "The Plot Thickens: The Appellate Brief as Story" is authored by the same Kenneth Chestek. Curious now about Chestek, you find that he has given a number of presentations that suggest his interest in legal storytelling. [Kenneth D. Chestek -- law school profile] What does Chestek's presentations tell you about legal storytelling? [One of the articles, "Narrative and the Appellate Opinion," co-authored by David Papke, will lead you still another of Papke's articles, "Discharge as Denouement: Appreciating the Storytelling of Appellate Opinions, 40 J. Legal Educ. 145 (1990).][Papke edited one of the early collections of of articles on narrative jurisprudence. See David R. Papke (ed.), Narrative and the Legal Discourse (Deborah Charles Publications, 1991). You may want to review the book's table of contents.]
Next you locate something quite similar to the Applied Legal Storytelling Conference program, a "current issue" (vol.15, 2009) of The Journal of the Legal Writing Institute. You find that the journal contains the following articles: Untold Stories: Restoring Narrative to Pleading Practice (Elizabeth Fajans & Mary R. Falk); Voice, Self, and Persona in Legal Writing (J. Christopher Rideout); Introducing Persuasive Legal Argument Via The Letter from a Birmingham City Jail (Mark DeForrest). The same journal issue contains three articles based on panel presentations at the 2008 American Association of Law Schools (AALS) meeting and you're curious as to how these writing articles might be connected to the story articles: Writing Across the Curriculum: Professional Communication and the Writing That Supports It (Andrea McArdle); Legal Storytelling: The Theory and the Practice—Reflective Writing Across the Curriculum (Nancy Levit); What Will I Do on Monday, and Why Aren’t We Doing It Already?: Reflecting on the Value of Expressive Writing in the Law School Curriculum (Carol McCrehan Parker). What do the titles of these law professors' writings about legal storytelling and writing tell you about the lawyer as storyteller? If the titles don't tell you what you need to know, you'll need to peruse the articles themselves! [There are rumors that your instructor, some good many years ago, wrote about his efforts to teach reflective writing at West Virginia, and you're curious as to what he reports based on his students' journals. James R. Elkins, Writing Our Lives: Making Introspective Writing a Part of Legal Education, 29 Willamette L. Rev. 45 (1993)]
If lawyers are going to use stories, and suggest to their fellow lawyers that they are more effective when they use them, then we can expect lawyers to want to learn more about stories and how to put them to use. Legal educators are going to take up this endeavor, along with trial consultants. Let's take a look at a few of the trial consultants, and see what they tell us about lawyer storytelling:
Lighting Rod Communications
[Diana Wyzga is a nurse-attorney and "professionally-trained storyteller who acts as a trail consultant and communications coach to lawyers. Lighting Rod Communications's expertise is showing lawyers how to identify, shape and effectively deliver their client's legal story using language with power, passion and precision. In turn, lawyers influence the listener's experience of the client's legal story as one they recognize in their own world view."][Four video clips available][Wyzga is a graduate of the University of San Diego School of Law. She practiced law for 10 years on plaintiff and defense cases in products liability, medical malpractice, health care, pharmaceuticals, and mass tort litigation. She is the author of journal articles on legal storytelling, and works hands-on with litigators, focus groups, and ADR, to identify, shape, and deliver a client’s presentation.][Jim Parziale & Dian F. Wyzga, Once Upon a Client: The Power of Persuasive Legal Storytelling]
Power Story Consulting, Inc.
[Richard Krevolin conducts programs on "storytelling for lawyers" and "legal storytelling" workshops.][Prof. K. on storytelling :: YouTube video, 4:11 mins.][Using Story to Create an Emotional Connection with Juries][Storytelling Seminar: Thinking Outside the Jury Box Workshop :: I think you'll find the Krevolin's schedule for the storytelling seminar/workshop of some interest.]Practical JuryDynamics2
[Sunwolf shows lawyers "the powerful path to humanizing our clients, through storytelling, kindness to all, summoning our inner magic, and a reminder that 'reality is no obstacle.'"] [Sunwolf's book, Practical Jury Dynamics2, with the unfriendly price of $149 requires a deep pocket. Or you might want to browse Sunwolf's DVD, Jury Talk, priced by LexisNexis at $230. At that price, it's a hit on my conscience to even think about having the law library order it!][Santa Clara University faculty profile]
As the day progresses, you sometime feel like a dog chasing its tail. And, all the more so, this sense of doubling back, when you locate the "draft" of the schedule for the first Applied Legal Storytelling Conference that was held in England in 2007: Storytelling Conference Draft Schedule. [One of the co-organizers of the 2007 Conference has written about the program and its "political" orientation, see: Brian J. Foley, Applied Legal Storytelling, Politics, and Factual Realism, 14 J. Legal Writing Institute 17 2008)(on-line text)][Brian Foley is also the co-author of: 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.J. 459 (2001)(on-line text)][Foley's co-author, Ruth Anne Robbins, is the author of "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)(on-line text)]
Assignment6
We'll discuss Gerry Spence's Win Your Case. Please read pp. 3-101 in the Spence book.
Reading Gerry Spence's Win Your Case
Gerry Spence & Storytelling Resources
Putting Stories to Work at Trial
Assignment7
Gerry Spence, Win Your Case: Read pp. 112-126 (voir dire)
Gerry
Spence & Voir Dire Resources
Assignment8
Gerry Spence, Win Your Case: Read pp. 127-148 (opening statement)
Gerry Spence & Opening Statement Resources
Opening
Statement in the Case of Jessie Misskelley
[by prosecutor Dan Fogelman in the West Memphis Three
case, January 26, 1994][audio file]
Defense
Opening Statement in the Jessie Misskelley case
[by Dan Stidham][audio file]
Assignment 9 & 10: Closing Arguments
Gerry Spence, Win Your Case: Read pp. 223-280 (closing arguments)
Gerry
Spence & Closing Arguments Resources
State's
Closing Statement in the Jessie Misskelley Case :: pt.2
:: pt.3
[audio file]
Defense Closing
Statement in the Jessie Misskelley Case
[transcription]
State's Final Closing
Argument
[audio files]
As we focus our attention on the story-based trial advocacy of Gerry Spence, you may find it helpful to compare Spence's perspective with that of other story-oriented trial lawyers and legal scholars. Of particular interest is the work of Philip Meyer, especially Meyer's article on closing arguments: Desperate for Love: Analysis of a Defendant's Closing Argument to a Jury, 18 Vt. L. Rev. 721 (1994).
[Meyer continued to explore his original thesis in Desperate for Love II: Further Reflections on the Interpretation of Legal and Popular Storytelling in Closing Arguments to a Jury in a Complex Criminal Case, 30 U.S.F. L. Rev. 931 (1996) and Desperate for Love III: Rethinking Closing Arguments as Stories, 50 S.C. L. Rev. 715 (1999)][See also: Philip N. Meyer, Making the Narrative Move: Observations Based Upon Reading Gerry Spence's Closing Argument in The Estate of Karen Silkwood v. Kerr McGee, Inc., 9 Clinical Law Rev. 229 (2002). You will also find of interest two additional articles by Meyer: Why a Jury Trial Is More Like a Movie Than a Novel, 28 J.L. Soc'y 133 (2001); Will You Please Be Quiet, Please: Lawyers Learning to Listen to Stories, 18 Vt. L. Rev. 567 (1994)]
