Personal Narrative & Legal Decision Making
Since the beginning, humanity has used the power of storytelling to shape its cultural reality.[1] Stories illustrate and justify our religions, governments, social norms, financial systems, and corporate concepts; this multitude of "invisible" stories protect and control our every living moment, and the law is not immune.[2] Though our bodies operate in a world of “solids” governed by physics and logic,[3] our consciousness “feels” these Invisibles[4] and transcends the solidity of our logical intellect to make room for universal concepts that “insis[t] on greater equity and justice."[5] The law operates in the penumbra between reality’s solidity and the invisibles of the collective human experience.[6]
Plato, in his works Republic[7]and Timaeus,[8]names two primary cosmological forces inherent in society: Reason and Necessity.[9] Plato considered Reason that which can be comprehended and quantified through logic, while Necessity is the vehicle by which Reason manifests in real life, taking into account life's messy realities.[10] The American legal system operates under the same premise by imposing legal rules on its petitioner's life-experience: logic, while essential to an orderly society and courtroom,[11] cannot be useful if its application does not breathe justice into the life of its intended beneficiaries.[12] Ultimately, the law must consider what is right and what will work; it does this by marrying logic and human experience, and it is through storytelling that this marriage is consummated.[13] “In a very real sense, the law is made of stories: lawmakers enact legal rules because they wish to dictate how some categories of real-life stories should end.”[14]
In storytelling’s arsenal, is the powerful ability to convey and appeal to people’s emotions: “legal decision making is enriched and refined by the operation of emotions because [emotions] direct attention to particular dimensions of a case, or shape decision makers’ ability to understand the perspective of, or the stakes of a decision, for a particular party.”[15] Lord Birkett, British barrister and judge, wrote “it would seem to be the view of those best qualified to judge that simplicity of speech, linked with the expression of the deepest feelings of mankind, has always had the power to stir men’s blood in all ages of the world’s history.”[16]
Of course, there are instances where the demand for truth and story collide; [17] and in these moments, the ethical attorney must submit to the truth, [18] but this does not require a total disregard for storytelling. Good lawyers understand the adversarial system requires facts to be encased in a persuasive narrative, [19] for the earlier connections between logic and human experience still hold.[20] “One distorts reality by suggesting that [emotional storytelling] is an unreliable guide to a true decision on fact,”[21] for as Justice Oliver Wendell Holmes, Jr. opines: “The life of the law has not been logic, it has been [the story of human] experience.”[22]
Neuroscientists have discovered that logic without emotion leads to poor decisions,[23] while coupling story with reason enables us to make wise decisions, especially during complex situations.[24] “[Storytelling] help[s] the judge understand why the outcome . . . [sought] is just and fair.”[25] Storytelling also helps the layperson jury, who is arguably more “feelingly alive to the sufferings of [their] fellow creatures”[26] than the aloof judiciary, make a gut-level decision toward justice.[27] Storytelling not only gives the decision maker the ability to know facts, but the ability to see, as William Wordsworth sees, the story’s subjects “feel,”[28] claiming insight to the Invisibles of Necessity that “cannot be demonstrated by logic or induced from factual evidence:”[29] what Jung calls intuition:
A sudden idea or “hunch” . . . [intuition] resembles a process of [unconscious] perception . . . It is a process analogous to instinct, with the difference that whereas instinct is a purposive impulse to carry out some highly complicated action, intuition is the unconscious, purposive apprehension of a highly complicated situation.[30](emphasis added)
More often than not, important legal decisions are complex decisions arising from complicated situations, and storytelling is a powerful component of whole-brain thinking,[31] enabling laypersons, lawyers, judges, and politicians to improve their ethical, social, and legal decision making.
Storytelling is a tool that can and should be ethically used by legal professionals, but should those in the legal profession only listen to internal narratives or turn their ears to those enslaved by one social ill or another? If the legal community is to be a harbinger of justice that eases multi-generational suffering, then surely the answer must be: yes! As discussed above,[32] ethically told stories have the power to refine complicated social situations into messages that can be understood and used toward finding mindful and lasting solutions to those situations.
Mindfulness is essential to long-lasting, multi-generational justice: “[m]indfulness provides a framework for thinking about how individual action is tied to group process, how group process connects to institutionalized relations of power, and thus how transformational change at the interpersonal level is linked to transformation[al] change at the regional, national and global levels.”[33] Stories can help us see deeply into situations of the suffering: “Once we are able to see deeply the suffering and the roots of suffering, we will be motivated to act[34] . . . If anyone . . . embraces suffering [with mindfulness] he will come to really understand the nature of that suffering and will no longer impose on . . . others dogmas that constitute obstacles for working towards the cessation of that suffering.”[35]
Story is the architect of our societal reality and the alchemical compound that transforms ethereal logic and reason into grounded and practical life application. Stories help us to feel the complicated emotions of those crying out for justice and enable us to make just decisions based on those shared human emotions. The more complex the legal issue, the more we require stories to bridge the gap between heartless logical conclusions and unreasonable empathetic “solutions.” Storytelling is the great equalizer that can bring down the tyrant and empower the oppressed. We can only make just decisions by considering each person's story, no matter where it comes from, be it in the courtroom or out on the street.
[1] Joseph Campbell, The Hero With a Thousand Faces 1 (1941) (“Throughout the inhabited world, in all times and under every circumstance, [stories] of man . . . have been the living inspiration of whatever else may have appeared out of the activities of the human body and mind.”).
[2] See James Hillman, The Soul’s Code 96 (1996).
[3] Henri Bergson, Creative Evolution ix (1911).
[4] See Id.; See also James Hillman, supra n. 2 at 96-7.
[5] Aristotle, Poetics and Rhetoric 227 (George Stade ed., 2005) (“[U]rge that the [universal law’s] principles of equity are permanent and changeless . . . whereas written laws often do change.”).
[6] The concept that a person can own property, that a promise in exchange for performance creates a contract, and that a corporation is an entity capable of suing and being sued are all imaginary. Yet, we treat them as solid realities; see also Legal Fiction, The Wolters Kluwer Bouvier Law Dictionary Desk Edition (2012) (“A legal fiction is a statement about some event or occurrence that is not true as a matter of historical fact . . . [But, t]he fact that the fiction is untrue is not grounds for overturning the decision.”).
[7] See, Plato, The Republic of Plato (B. Jowett trans., 2007) (accessed on Project Gutenberg, https://www.gutenberg.org/ebooks/55201).
[8] See, Plato, Timaeus (B. Jowett trans., 2008) (accessed on Project Gutenberg, https://www.gutenberg.org/ebooks/1572).
[9] James Hillman, supra n. 2 at 208.
[10] Cornford, Francis, Plato's Cosmology: The Timaeus of Plato 176 (2014).
[11] See Jeanne M. Kaiser, When the Truth and the Story Collide: What Legal Writers Can Learn from the Experience of Non-Fiction Writers About the Limits of Legal Storytelling, 16 Leg. Writing 163, 167-168 (2010). ; David S. Romantz & Kathleen Elliott Vinson, Legal Analysis: The Fundamental Skill, 37 (2009).
[12] Holmes, The Common Law 1 (1992).
[13] Stephen Paskey, The Law is Made of Stories: Erasing the False Dichotomy Between Stories and Legal Rules, 11 LC&R: JALWD 51, 52 (2014).
[14] Id.
[15] Abrams & Keren, Who’s Afraid of the Law and Emotions?, 94 Minn. L. Rev. 1997, 2004 (2010).
[16] Birkett, Six Great Advocates 109-10 (1961), as quoted in John C. Shepherd & Jordan B. Cherrick, Advocacy and Emotion, 138 F.R.D. 619 (1991).
[17] Jeanne M. Kaiser supra n. at 163.
[18] See Generally, Federal Rules of Professional Conduct.
[19] Robert Burns, A Theory of the Trial 36-38 (1999) (“[P]ersuasion . . . relies on . . . one strand of narrative and one of logical argument . . . like a . . . double helix . . . form[ing] a lawyer’s theory of the case.”).
[20] See supra text accompanying nn. 9-13.
[21] R. DuCann, The Art of the Advocate 156 (1980).
[22] Holmes, supra n. 12.
[23] Jonah Leher, How We Decide 240-245 (2009).
[24] Id. at 248-249.
[25] Joan M. Rocklin et. al, An Advocate Persuades 11 (2016).
[26] Robert Issac Wilberforce & Samuel Wilberforce, The Life of William Wilberforce Vol. IV. (quoting, slavery abolitionist, William Wilberforce, “If to be feelingly alive to the sufferings of my fellow creatures is to be a fanatic, I am one of the most incurable fanatics ever permitted to be at large.”).
[27] Louis J. Sirico, Jr. & Nancy L. Schultz, Persuasive Legal Writing 12 (4th ed. 2015).
[28] See William Wordsworth, The Prelude, in The Poems of William Wordsworth (1926) (“To every natural form, rock, fruit, or flower, / Even those loose stones that cover the highway, / I gave a moral life: I saw them feel / Or linked them to some feeling: the great mass / Lay bedded in some quickening soul, and all / That I beheld respired with inward meaning.”).
[29] James Hillman, supra n. 2 at 100.
[30] J. C. Jung, Instinct and the Unconscious, in The Portable Jung, 51 (Joseph Campbell ed. 1976).
[31] Jonah Leher supra n. 23 at 248-249.
[32] See supra text accompanying nn. 21-31.
[33] Angela Harris, Margaretta Lin, and Jeff Selbin, “The Art of War” to “Being Peace”: Mindfulness and Community Lawyering in a Neoliberal Age, 95 Ca. L. Rev. 2074, 2076 (2007).
[34] Thich Nhat Hanh, Living Buddha, Living Christ, 110 (2007).
[35] Id. at 177.
[36] See Campbell supra n. 1 at 337.
[37] Id.
