Control the Narrative

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.