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Law in Contemporary Society
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Control the Narrative-- By PrashantRai - 02 May 2012 At the beginning of the year 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. Two cases with seemingly identical facts would be decided differently. 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. Each plaintiff and defendant had a unique story, and a general principle could not generate fair outcomes without careful tailoring to the details of each case. Yet, as we came closer to exam time and started writing outlines, doing practice exams, and subjecting the material we had learned in the preceding months to the reductive processes taught to pass an exam, the distinct face attached to each case dissipated. The facts became less relevant. The subtle distinctions between the circumstances surrounding Hawkins' hairy hand and those of the Peevyhouses' coal deposits mattered less and less. 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 grade-focused student has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach. Just a small note: I think your Peevyhouse example illustrates exactly what is important in good teaching. You're right that students shouldn't just be memorizing bite-sized propositions on an exam. My contracts professor noted how she thought Peevyhouse was wrongly decided: Cost of completion should have been the damages precisely because the family lived on the farm and had a greater personal value in the land. Exams SHOULD allow a student to explore issues like these and not force them to just memorize this propositions to spit out. This is not just true in exam-preparation but also finds support in the classroom context. 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 simply something he does when introducing students to the law but not a practice he continues once we get the hang of it. Put differently, it seemed to me as though the professor was telling us that the facts of the case matter less for an advanced practitioner. I spoke with a classmate the other day about the use of violence by police officers to subdue people that run away from arrest. He favored a blanket rule that violence (even deadly force) was justified as a law enforcement technique once the police officer knows that the person has broken the law and is resisting arrest (even if the law broken was a misdemeanor and the means of resistance were nonviolent). This seemed to me an absurd position to take, so I asked him what he thought about a situation where a man steals a loaf of bread from a grocery store to feed his starving family. He sees a police officer chasing him and he runs because he knows that if the police officer arrests him then he will go to jail and will therefore have an even more difficult time providing for his family. I asked my classmate if the police officer could gun the man down in the street for breaking the law and resisting arrest. Without a second thought, he said yes. "Proportional response requirements do not create the proper incentives to stop crime from happening." Now, it is of course impossible to trace the mentality of my peer to the impersonal style of case-reading encouraged by the law school. Without doubt, the lack of sympathy that my classmate demonstrated towards the poor bread thief indicated a deep seated psychopathy (this brought the lols) that had nothing to do with his experiences in law school. But I can't help but think that his answer was somewhat reflective of my concern that the way in which the law school focuses on generalization at the cost of personalization might be damaging, especially if we are the future of the law. When we talk about the facts of a case, we call them just that -- facts. But I prefer to call them stories, because the word "stories" ties the facts to the experiences of a particular person. 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. Eben, I would like to keep working on both of my papers after the formal grading period ends. Thank you for a great semester. I think this paper is wonderful. You make nice use of stories at each turning point in the paper. I see three main areas for improvement. First, the paragraphs need to be tied together more tightly. Second, the point of each paragraph is a little lost because the topic sentence never appears until the end of the paragraph. The reader doesn't have an idea of the point you are building up to, until the point is made. Third, the concluding sentence at the end of the paper establishes a conclusion – placing more emphasis on studying stories in law school will help us to become more powerful advocates - but doesn’t elaborate on how this will happen. How will finding the stories in cases and talking about our own life stories help us to become more powerful advocates? It’s a nice concept and I agree with you, but I feel like this part of the paper needs to be fleshed out a little more. I reconstructed what I read to be your outline, so as to help you focus on what I as a reader took away from the paper, and see how to connect each paragraph together more fluidly. I think most of it is really good but the weakest link/place where I got the most lost was the point you were trying to make in paragraph 3. I think if you put a sentence at the beginning of this paragraph that outlines the point you are trying to make in the rest of the paragraph, it might tie in that paragraph a little more nicely. Para 1: At the beginning of law school I learned each case had a unique story behind it and a general principle could not generate fair outcomes without careful tailoring to the details of each case. Para 2: As the year progressed I learned that in order to succeed on an exam a grade-focused student has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach. I’ll point out that this trap is only a problem if the student remains focused on the grade. A student who ignores grades, as Moglen suggests, might not suffer this fate. Para 3: The way courses are conducted also supports this view, and furthermore promulgates the idea that this reductive pattern, taking the human story out of a case, is necessary to succeed as a lawyer as well. Para 4: The way in which the law school focuses on generalization at the cost of personalization might be damaging, especially if we are the future of the law. Additionally, I made some minor edits to word choices and sentence construction throughout the first two paragraphs, that I think convey your point a bit more succinctly (15 words more succinctly, to be exact). You can change that back to the original if you don't like it. -- SkylarPolansky I think it's also interesting to note how much more important facts are than the law in the real world. I'm working for an organization that does criminal litigation right now, and the cases they win are built almost exclusively on their ability to find facts. Brilliant legal rationales almost never come into play. It's funny how we put such a premium on legal analysis in law school and how unimportant it is in the real world. -- JaredMiller - 07 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.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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