Storytelling in Law: Truth and Persuasion

FatCatRex's picture

Facing the Facts

Professor Anne Dalke

September 17, 2010

 

Storytelling in Law: Truth and Persuasion

           

Reading Alison Bechdel’s Fun Home brought up many questions for me as to the shape and significance of truth or fact in narrative. For me, the distinction between fact and fiction disappeared with Fun Home. Truth is constructed intentionally and carefully throughout the narrative, layering its base of non-fiction with numerous literary references and allusions to fiction. I found that I appreciate the precise power and calculated narrative effect of Fun Home more than I value the guarantee of unequivocal fact or reality. This somewhat shocking realization raised issues for me about the nature of truth in arenas besides that of non-fiction prose; in particular, when does Truth matter?

The United States judicial system is one of few recognizable entities in which Truth is explicitly and consistently touted as the focal point on which decisions are made and thus, justice is served. In practice however, truth in law and in courtrooms across the county, the truth is merely a referential entity but the ‘Truth’ is by no means the limiting factor for legal proceedings. Lawyers spin the truth and use only the version or slice of truth that is necessary for a ruling in their favor. Therefore truth does matter, in the sense that it is necessary to recognize enough of it to argue effectively, yet rarely does it seem that ‘the whole truth and nothing but the truth’ is the real standard.

As this essay will explore, many lawyers and legal scholars have taken up the discussion of storytelling within the law, turning into a whole movement of storytelling that shall not be discussed here for the sake of length and brevity. Dana K. Cole, a professor of law at the University of Akron, writes in the hopes of inspiring new lawyers to hone their storytelling skills. Steven Lubet goes even further, claiming that lawyers should not only be trained in the art of crafting stories, but that at no point should lawyers ever be less than performing. Thirdly, I will consider the work of Patricia J. Williams, who presents personal and powerful insights from her work as a law professor on the ideas of how we are taught to interpret experiences as truth which may not be our own.

Law professor Dana K. Cole directs his article towards trial lawyers in training, and advises his audience to enliven the discussion and delivery of clients’ stories in court. Cole specifically emphasizes the importance of ‘storytelling’ such that jurors feel as they have experienced the same story, the same injustice or incident. In relating ‘truth’ to the court, attorneys use the portions of truth which are relatable, transmutable entities—Cole pushes lawyers to projects truths that are not their own, such that listeners can perceive and imagine these instances as their own. As Cole describes, lawyers “learn to decontextualize facts and categorize them according to their legal significance, sorting the relevant facts by issue,” and not in order to recount the complete, uninterrupted truth (Cole 3).  In many cases, Cole asserts that: “the problem with storytelling is that [lawyers] simply do not know the story,” (3). The irony is that Cole believes the most critical piece of courtroom procedure is to communicate stories effectively and passionately, although he goes on to say that at no point is the truth a part of these stories. 

Lubet reiterates at least the latter half of this dichotomy, with perhaps the former point by Cole implied. Lubet finds that: “The best lawyers are storytellers…who take the raw and disjointed observations of witnesses and transform them into coherent and persuasive narratives,” (Lubet book jacket). The truth, in its empirical perfect glory, matters to neither Cole nor Lubet. As lawyers and legal scholars, the point for them is to communicate the necessary portions of truth, such that truth of the trial becomes their hopeful outcome. While Alison Bechdel is not presenting her graphic narrative in a court of law, her intentional construction of truth mirrors that of trial lawyers across the United States. Furthermore, Lubet calls the courtroom performance of truth by lawyers “a creative process to be sure,” while still acknowledging that “every story must ultimately be based in truth,” (Lubet book jacket). The question then becomes, what is a basis of truth and whose basis is it? It seems that the lawyers, who remain in control of the truth released and delivered, would be those determining the basis in truth. Yet if the entire truth isn’t important, what is the compulsion for a grounding in truth—is it merely a moral, societal norm or are we to believe that an attorney’s presentation of story, no matter the circumstance, need be always based on fact for his personal fulfillment?

According to Lubet, “it is obvious that trial lawyers never tell ‘the whole truth,’ since life and experience are boundless and therefore not fully describable,” (Book jacket). This notion seems to be drawn straight from the orbit of David Shields and his theories of shared fact and appropriation of ideas. Because these life-truths are boundless, as noted by Lubet, it seems unlikely that the legal sphere would have room for truth at all. Granted the supposed purpose of trial and legal enquiry is to get to the truth of a matter—yet as Lubet and Shields point out, perhaps there is no such thing.

In a similar vein, Patricia Williams spends the first chapter of her book The Alchemy of Race and Rights describing how the language and practice of law limits obtainable, sought after truths. Williams is, “interested in the way in which legal language flattens and confines in absolutes the complexity of meaning inherent in any given problem,” (Williams 6). She deduces—like Lubet, Cole, Bechdel and Shields—that for the truth to be compelling, captivating, and thus bring the speaker success, the real requires precise construction. For a powerful book or a ruling in their favor, the storyteller may omit a few details or connect particular instances in a way such that the defendant or protagonist would not. The perspective and distance gained by the third-party lawyer-writer allows them to work liberally with the definition and use of truth.

Williams notes the balance between a manipulated story and a constructed truth, pointing to the way in which a fabricated truth objectifies the authority of the speaker (Williams 11). Williams argues eloquently that truth is already extinct in the realm of law—saying that lawyers make up, “their own breed of narrower, simpler, but hypnotically powerful rhetorical truths,” (10). She goes on to rely an incident between a four-year-old boy and his parents, in which the boy shares his fear of large dogs. The parents dismiss this notion, claiming that large dogs are really just the same as small ones and concluding that his fear is irrational (13). Williams recalls this moment to speak to the power of our truth of experience, and also how easy it is to be talked out of our own truths. Soon the little boy fell silent, recognizing his parents will and dominance of wisdom and position in this case. Williams notes that he is in a position often occupied by women and minorities, in that these populations are socialized to believe the truth to be contained in a white, masculine, privileged framework.

Williams not only acknowledges the construction of truth in law, but also in our everyday lives. If truth can be lost with a misdirected parent’s few sentences, then how is anyone to ever know a truth empirically, or his or her own personal truths? Lubet and Cole present the case for truth’s unexpected role in law, but Williams brings these concerns to our every moment.

 

Consulted texts from outside class:

Cole, Dana K. “Psychodrama and the Training of Trial Lawyers: Finding the Story.” (2001). Northern Illinois University Law Review.

Lubet, Steven. Nothing but the Truth: Why Trial Lawyers Don’t, Can’t, and Shouldn’t have to tell the Whole Truth. (2002) New York University Press. Book jacket only.

Williams, Patricia J. The Alchemy of Race and Rights: Diary of a Law Professor. (1991) Harvard University Press. Cambridge. Chapter One, 3-14.

 

Comments

Anne Dalke's picture

"When does Truth Matter?"

FatCatRex--
As I already said to SandraG and EVD, I'm delighted to have the trio of you exploring the relevance of our study of nonfictional prose for your future careers in medicine and law. What's the "transferability" of our core ideas--the shaping, structuring, construction (="fictionality") of fact, and the counternotion of an increasingly shared subjectivity--to larger realms of practical work?

What feels to me curiously missing in your account, though (especially since you yourself are en route to law school) is a description of what sense YOU make of the work of Cole, Lubet and Williams: do you believe that "'truth' is by no means the limiting factor for legal proceedings"? That the REAL standard in play in courtrooms is NOT "the whole truth and nothing but the truth"?  You've given me a great overview of some of the thinking of lawyers involved in the storytelling movement in law, but left out the final step: your own thinking about the material you've reviewed.

By lumping together the work of three different scholars, and not filtering them through your own lenses and investments, you also seem to be setting forth a number of claims here that don't strike me as entirely compatible with one another. On the one hand, you focus in on the ways in which the use of storytelling techniques can strengthen the claims being made: "for the truth to be compelling, captivating, the real requires precise construction," so that "jurors feel as they have experienced the same story." Such courtroom performances of truth by lawyers are described as part of “a creative process,” and lauded as such.

On the other (starkly opposed) hand, language use doesn't strengthen the narrative being told, but is rather inadequate to the assigned task. This dimension of your argument seems almost ontological in scope: "since life and experience are not fully describable, trial lawyers never tell ‘the whole truth'": that is, language is inadequate for the task we put to it.

On the third hand (?), you follow Williams in placing the limits not on the shortcomings of language in general, but on legal language, which "limits obtainable, sought after truths," "flattens and confines in absolutes the complexity of meaning inherent in any given problem"; lawyers make up “their own breed of narrower, simpler, but hypnotically powerful rhetorical truths.”

On the fourth hand (??), you gesture toward truth not as a shared consensus (among, say, jurors) but rather as a personal and interior, constituted by an individual to reflect  her own experiences alone.

Do any one of these claims best express your own views on the question of "when truth matters"? I'm eager to know.

Also two points about your works consulted list: you should include everything you bring into the text, including any relevant material we've discussed in class. There are also  number of other key figures in the legal storytelling movement, all interested in complexifying and challenging the abstract truths of law w/ the particularities of individual stories. Should you want to pursue this direction of exploration further, you might check out the work, for example, of both Derrick Bell and Richard Delgado (also known as "critical race theorists").

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