Stephen Jay Gould, the eminent scientist and Harvard professor, was interested in human pattern recognition in stories. He referred to the patterns that human minds want to create as “canonical stories.” His essay entitled “Jim Bowie’s Letter and Bill Buckner’s Legs”, which appears in I Have Landed: The End of a Beginning in Natural History, describes two famous stories — one of Jim Bowie at the Alamo and the other of Red Sox first baseman Bill Buckner.
Gould explains how both of these stories have often been patterned into the form of a canonical story. In the Alamo story, the canon focuses on the Alamo defenders’ valor and honorable death. William B. Travis, a young commander at the Alamo, wrote a letter describing the siege, which ends with the phrase “VICTORY OR DEATH.” (60) This famous letter is often cited in Alamo legend, but Gould points out that Bowie also wrote a letter, which fails to get mentioned because it does not fit with the canon. (60) He goes so far as to say Bowie’s letter is “hidden in plain” sight, ignored in a glass case at the Alamo museum. (60-61) Bowie thought that Santa Anna was willing to negotiate, and he wrote in Spanish to Santa Anna asking whether Santa Anna had called for a parley. (61-62) Santa Anna responded that he would have no mercy without unconditional surrender. (62)
Gould then surmises that even with this response, had Bowie been less ill, “some honorable solution would eventually have emerged through private negotiations” because Santa Anna and Bowie were seasoned battle veterans. (62-63)
Gould thinks this letter gets ignored because it reflects Bowie’s attempt to find a sensible alternate solution with less bloodshed, instead of promoting the canon of the defenders’ valor and honorable death. (63)
In the Bill Buckner story, the stage is set with “the curse of the Bambino.” (63) The Red Sox had been losing World Series championships throughout the decades. (64) In 1986, however, it seemed like luck was changing for the Red Sox. They were up three games to two going into game six — which meant that if they won game six, they would win the series. The Red Sox led by two going into the last inning. (64) With the Mets at bat and two outs, the Mets managed to tie up the game. (64) At the fateful moment for Bill Buckner, Mookie Wilson from the Mets hit a ground ball that bounced through Buckner’s legs, bringing in the winning run. (64-65) The Mets went on to win game seven, continuing the curse of the Bambino. (65) The canon generally pins the World Series loss on Bill Buckner as a “but for” situation: but for Bill Buckner’s mistake, the Red Sox would have won the series. (66) However, the Red Sox had other opportunities — after all, they could have won game seven.
Gould uses these stories to illustrate how canonical stories can ignore or misstate key facts. Adherence to canonical stories in science can cause problems because scientists may try to fit evidence into a preferred storyline, instead of allowing the evidence to speak for itself.
This same point applies in legal advocacy. On one hand, it’s crucial to create a strong theory of the case and to create a compelling story. But one has to be cautious at all points in the litigation process of creating a canonical story that fails to incorporate or address key pieces of evidence. One place where this pitfall can happen is in discovery. An engaged lawyer should constantly be sorting through the evidence, trying to create a cohesive story. If a fact does not seem to fit, however, it is important to keep that fact in the forefront, not to forget about it. A lawyer also has to obey the ethics rules regarding the representation of facts. As the story officially emerges in the pretrial and trial stages of the case, a lawyer needs to be mindful that the other side will always be ready to point out the adverse facts. It’s best to have a strategy to deal with adverse facts.