Is storytelling the missing ingredient in legal education? Jon Robins reports on how the art of telling a story can be a powerful tool for lawyers


‘I will call her Janet because she has had four surnames already.’ So began Lord Denning in his judgment in the case of Eves v Eves in 1975. ‘She was married for the first time at the age of 18, but that marriage only lasted about a year. Next at the age of 19, she met a man, Stuart Eves. He was a married man. They could not marry. So they started living together…’ Eves was a leading ruling on the law relating to the imposition of a constructive trust whereby the defendant held the house on trust for himself and the claimant.



In a rare example of judicial style over substance, the judgment is today rather more striking for the extent to which the idiosyncratic judge deviated from stuffy linguistic convention of court rulings and attempted to tell a human story at the heart of a legal case.



Robert McPeake, principal lecturer at the City Law School, argues that storytelling is the ‘missing ingredient’ in legal education. He cites Lord Denning in Eves as the ‘kind of classic example insofar as he was the exception to the rule’.



Last month, the school hosted a legal storytelling conference called ‘Once upon a legal time’, attracting speakers from legal academia as well as practice throughout the world. It is a conference topic that is likely to be greeted with some bemusement by practitioners on this side of the Atlantic, but the idea of legal storytelling is, nevertheless, firmly entrenched in US and Australian legal thinking.



So why are stories useful for lawyers? Professor McPeake answers the question on three levels. The story is important to advocates because ‘it is a very good way of describing and understanding how people assess and work with evidence, and advocates need to understand what makes a good story’. Secondly, lawyers need to understand that some stories are more persuasive than others and the more plausible stories tend to be ‘consistent with the listener’s world view’. Finally, he argues that evidence suggests jurors are ‘emotional, impulsive, sympathetic, affective (or right brain) decision-makers’ whereas lawyers tend to be ‘cognitive (left brain) decision-makers’, and understanding how lawyers analyse is important ‘because, of course, our judges come from the ranks of lawyers’.



The conference last month followed a 2005 ‘Power of Stories’ conference sponsored by the University of Gloucester together with the Texas Wesleyan School of Law. A packed schedule included sessions entitled ‘Telling stories to a jury’, ‘Storytelling in an Australian tax law degree’, ‘The use of humour in judicial opinions’, ‘Attorney as artist’, ‘Metaphor and narrative in family law disputes’ and ‘The power of film as legal storytelling’, as well as a panel discussion on ‘Harry Potter and the law’.



If it all sounds a rather esoteric approach to the practice of law, delegates insist that it should have a direct relevance. ‘The role of narrative is relevant to the lawyer in practice because it tends to acknowledge the human aspect of a judge or jury, the decider of the case, whose understanding of the facts and the application of the relevant law will be integral in obtaining a favourable ruling for the client,’ argues Professor Deleso Alford Washington, who teaches legal research and writing at Barry University School of Law in Orlando, Florida.



She adds that narrative was particularly ‘relevant to law professors who provide learning opportunities for students to “think like a lawyer” – [to be] capable of articulating in writing briefs or orally at trial a believable theory of the case from the facts ascertained through interviews, discovery and other available sources’.



‘Practitioners who see their advocacy as based only on legal analysis will fail to use all the tools they can,’ explains Jason Eyster, an assistant clinical professor at Ave Maria School of Law in Ann Arbor, Michigan, who ran the ‘Attorney as artist’ session. ‘Legal analysis is very abstract and seeks to link the elements of legal matter to specific facts and ignore all the other facts. This cerebral attitude fails in many cases to create a presentation that is either memorable, credible or one that can be passionate. Through telling stories, one is able to organise the facts in a way that is credible and does touch the listener. That is not to say that the story should be independent of legal analysis.’



Typically, the academic argues, a legal case is ‘a fight between two storytellers with alternative stories based on two sets of facts’. In his session, he argued that lawyers were ‘far more comfortable with words and abstract ideas than they are with visual images’; however, ‘identifying, interpreting and presenting the visual elements of their client’s stories may significantly improve their advocacy’.



The academic name-checks the school of legal realism, the theory that judges’ personal views, biases and subjective preferences affect their decision-making that has been around since the 1930s. ‘It was a philosophical approach by academics to understand how the law is interpreted. The school of legal realism said that judges don’t make decisions based upon weighing the legal aspects of the case, but they take a decision often on an intuitive basis and then, because of our [precedent] system, they are able to find the cases that support their view.’



It is a radical view that questions the common law as ‘a seamless thread’. He says: ‘There is, perhaps, a fiction that the law is guided by previous judicial opinions. However, the judges are leading thinkers of current societal norms. We do have cases which generally come down on both sides and judges are free to pick whichever of those they think best. Society gives its own view in analysing why judges choose one case over the other. Legal realists say that they just choose whichever one is the most expedient but, being less cynical, you could say they choose the story that is most compelling.’



‘Our advocacy system does not rest upon this notion of objective truth. It is more about trying to find the best possible resolution of the dispute,’ comments Eileen Scallen, a law professor at William Mitchell College of Law in Minnesota. She argues that the notion of ‘trials as exercise of persuasion because they don’t necessarily have access to objective truth’, as opposed to the idea that there is either ‘truth or falsity’, goes back to Plato.



Professor Scallen, who teaches ‘argumentation and persuasion theory for lawyers’, spoke at the conference about ‘The art of storytelling in Wellman’s “The Art of Cross-Examination”’. Generations of lawyers have been taught the principles expounded by Francis L Wellman, a 19th century New York trial lawyer. He talked about cross-examination as being ‘a play within a play’, explains Professor Scallen, ‘little mini-confrontations that are, in essence, drama’.



Surely it could be argued that an overly-dramatic approach to courtroom techniques undermines the seriousness of the occasion? ‘The problem is that you cannot veer away from it. The drama is built in,’ she replies. ‘But what Wellman points out is that we have this notion of confrontation as battle and it doesn’t necessarily need to be an angry confrontation.’



Dr Kate Auty, a magistrate in Western Australia, told delegates that ‘all sentencing is a conversation with the community’. The lawyer, who previously worked for Aboriginal Legal Services, was involved in establishing a number of Aboriginal sentencing courts, established to overcome ‘the difficulties in terms of alienation of Aboriginal people in the magistrates’ court’. Between 35% and 40% of prisoners in Western Australia are Aboriginal, despite Aborigines only making up 3.5% of the population. ‘The reality is that if anyone was confronted by the kind of figures that we have there, then they’d have to think of other ways to do things,’ she explains.



‘What we now have is a court deciding over Aboriginal sentencing matters, pleas of guilty only, but that can be very serious matters such as unlawful wounding,’ Dr Auty explains. ‘We convene the court around an oval table and a magistrate sits with Aboriginal people who are selected by the community, or who self select, and go through a training process. We then also have at the table an Aboriginal justice officer.’ In this ‘circle sentencing’ model, there can be as many as 15 people around a table in what can be, the lawyer admits, ‘a bit of a hurly-burly’.



Aboriginal people have ‘an essentially oral tradition of allowing people to tell their stories’. ‘There are numerous ways in which storytelling is an appropriate way to incorporate Aboriginal people in a system in which they are omnipresent but environmentally and culturally absent,’ she argues. It is an approach that appears to work. In one area, the recidivism rate had been 33% (Aboriginal and non-Aboriginal), but in the last two years it has been reduced to 12.9%. While there are echoes of North Liverpool Community Justice Centre, which itself was based on a court in Red Hook, Brooklyn, Dr Auty says that her courts were a response to the area’s own unique problems.



She argues that sentencing is ‘a conversation with the community, whether we like it or not’. ‘You can be reacting to your middle-class background, working-class or academic background. The reality is that we are all in a constant discussion with our backgrounds and we often pretend that we are not. We are openly in discussion with the community, although the magistrate has the final say. We lay bare that fiction, I think.’



Jon Robins is a freelance journalist