lawyer as storyteller
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]
Bruner, pp. 13-62
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:
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)?" .
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 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"?
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.
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:
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:
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)]
We'll discuss Gerry Spence's Win Your Case. Please read pp. 3-101 in the Spence book.
Gerry Spence, Win Your Case: Read pp. 112-126 (voir dire)
Gerry Spence, Win Your Case: Read pp. 127-148 (opening statement)
Statement in the Case of Jessie Misskelley
Opening Statement in the Jessie Misskelley case
Assignment 9 & 10: Closing Arguments
Gerry Spence, Win Your Case: Read pp. 223-280 (closing arguments)
Closing Statement in the Jessie Misskelley Case :: pt.2
Statement in the Jessie Misskelley Case
State's Final Closing
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)]