Story-telling and the Law

Posted on Categories Legal Writing

Tens-of-thousands of years ago human beings would gather near fires to keep the nightly darkness and danger at bay. Under the faint light of long-gone constellations, they would share stories. Stories of long-ago hunts and happenings that could no longer be remembered by any living soul. Dramatic stories of the beginning of the world, of gods big and small and the conflict between them all. Some of these stories were told with cave paintings, a smear of ash and suddenly a herd of elk would materialize on a cave wall.

Story-telling is fundamental to being human. As a collective species we surround ourselves in them and use them to relate to one another. The stories we tell can be light-hearted and full of levity. They might be tragic and heart wrenching. Usually, they are some sort of combination. Whether we realize or not we tell and retell stories every day. We relate the stories of our day to our significant others and friends after a day of work. We bond with our friends over stories of past exploits. Spend ten minutes with any child and you will be inundated with stories.

We use stories to make the complex simple and to craft narratives and mythos of the everyday. We judge the entertainment we consume based on how the stories contained within make us feel and award little golden statutes to those stories we deem best. The overwhelming majority of us will never receive a statute for the story of our own lives, but that doesn’t make them any less important.

From the criminal defendant to the corporation, there is always a story to tell. Which makes the legal profession’s aversion to stories and story telling all the more puzzling. The legal profession prides itself on brevity and regrettably this can sometimes lead to squeezing the humanity out of their story. A human being reduced to a mere two-dimensional caricature is a disservice to everyone. It reduces the humanity of the client and it embitters the attorney to see every client as a transaction, rather than someone who needs help with the complicated legal system. Much like an off-brand powdered juice mix the de-humanized, non-story recitation of a client’s issue can leave one wanting something more substantial.

It is easy to see why this happens. Attorneys at some firms live their lives 15 minutes at a time, constantly aware of the amount of time they spend on a given task. With limited space in written briefs and limited time in front of a judge to make their arguments it is tempting to jettison the human story that brought the suit in the first place. The U.S. Supreme Court for instance imposes a word limit of 9,000 words for Petitions for Writs of Certiorari and generally limits oral argument to an hour total on issues that affect the entire nation.

But despite the limitations placed on how an attorney has to advocate, we shouldn’t forget to tap into the human instinct. I didn’t realize the power inherent in stories until the spring semester of my second year of law school. Up to that point I had dogmatically followed the CREAC, (conclusion, rule, explanation, application, and conclusion) format and could never figure out why my legal writing was never as compelling as my peers. The answer was quite simple. I wasn’t writing a story for the fictional client, I was writing an instruction manual. There was no passion, no emotion, and as a result my writing suffered. I am glad to have learned that lesson. I had forgotten that everyone looks to the faint glow of constellations at night; that we seek out stories to help us understand the world.

One thought on “Story-telling and the Law”

  1. You’re right about the importance and clout of narrative. The philosopher and communications scholar Walter Fisher once said that our species is better understood as “homo narrans” than as “homo sapiens.” His point is that humans of all ages living in all cultures tell and understand stories. They are fundamental in how we make sense of our world.

    That having been said, there are at least two reasons for not assigning too much power to narrative in and of itself: (1) Narratives do not float free, and the meanings they convey derive from history, cultural context, and the working of power differentials, and (2) Sophisticated narratives convey variable and even contested meanings, and what we end up taking from narrative depends on individual and group interpretations.

    With narrative and narrative meaning, as with many things, we always have to leery of thinking we have something universal.

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