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.

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

Control the Narrative

-- By PrashantRai - 02 May 2012

At the beginning of the year, professors would force us to recount the facts of each case we covered in detail before we moved on to the legal issues in play. You might say something like: "and then the plaintiff cut his hand on the gear of the machine," and the professor would correct you promptly: "you mean he cut his arm, right?" Initially, this seemed tedious to me. His arm, his hand, -- who cares -- let's get to the reasoning, that's the interesting part. However, I soon changed my opinion. The more cases we went over, the more important the details of the facts seemed to matter. Two cases with seemingly identical facts would go in opposite directions, but a closer comb-through usually brought to light a minuscule factual distinction of monumental importance. By going through this exercise over and over, I came to recognize that each case is different, albeit sometimes only slightly. Each plaintiff and defendant had a unique story, and that 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 we started writing outlines and doing practice exams, the distinct face attached to each case soon began to dissipate. 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 in light of an upcoming exam that rewarded one sentence citations of the cases. Cases about real people and their stories became bite-sized propositions for use 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.

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 almost 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 as though the professor was saying to 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 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.

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