Most lawyers become accustomed to hearing clients speak in clichés taken from television. I think we’ve all had the experience of hearing a retail assistant, for example, give you their cell phone number and then say dramatically “and that’s on twenty-four-seven”, leaving you wondering if they’re expecting President Obama to ring them at 3am for their views on how Canada is likely to respond to China bombing the Spratly Islands. These clichés have a particularly useful purpose however. They tell us something significant about the world we litigate in and suggest some tactics which lawyers should consider.
One of the most natural ways of conveying both data and meaning is by telling stories: we might infer that when the Neanderthals buried their dead 400,000 years ago, that action went along with telling themselves stories about what would next happen to the deceased (1). As well as telling stories about what would happen to someone next, narrative is key to extracting meaning from what happened to them in the past. As Hayden White explains,
narrative figurates the body of events that serves as its primary referent and transforms those “events” into intimations of patterns of meaning that any literal representation of them as “facts” could never produce. (2)
That is, without narrative – the ability to identify meaningful patterns in events – reality can only be experienced as “one damn thing after another”.
Is this a problem?
The problem is hinted at by another point from White:
In historical discourse, the narrative serves to transform a list of historical events that would otherwise be only a chronicle into a story. In order to effect this transformation, the events, agents, and agencies represented in the chronicle must be encoded as “story-elements,” that is to say, characterized as the kinds of events, agents and agencies that can be apprehended as elements of specific “story-types”. On this level of encodation, the historical discourse directs the reader’s attention to a secondary referent, different in kind from the events that make up the primary referent, namely, the “plot-structures” of the various story-types cultivated in a given culture. When the reader recognizes the story being told in an historical narrative as a specific kind of story, for example, as an epic, romance, tragedy, comedy or farce, he can be said to have “comprehended” the “meaning” produced by the discourse. This “comprehension” is nothing other than the recognition of the “form” of the narrative. (3)
At present, the stock of narratives is dwindling, at least in part as a response to a shrinking in the means for conveying them. While one can look down on the predictable plots, formulaic dialogue and cardboard characters of umpteen cookie-cutter television dramas (NCIS, CSI: Bullamakanka, Silent Witness, Waking the Dead, Law & Order: Parking Infringements, etc etc), nothing gets away from the fact that they’re popular TV soundly packaged into an hour. The plausible influence of these programs on the available stock of narratives can be guessed at when one compares their popularity with (say), the relatively niche appeal of the utterly unheroic Oz, or the box office poison of largely unredemptive suffering in The Wicker Man (4), Beautiful Kate (5) or 2:37 (6). Much the same thing can be said about narratives drawn from fiction: in a wonderfully caustic piece, Harold Bloom described Stephen King as “an immensely inadequate writer on a sentence-by-sentence, paragraph-by-paragraph, book-by-book basis” and observed that J.K. Rowling’s “mind is so governed by clichés and dead metaphors that she has no other style of writing” (7), and another reviewer has questioned whether anything new – anything at all – can be done with the novel as a way of writing (8).
If there is also a high rate of illiteracy or low-literacy (and in Australia the figure now stands at about 46% of the population), this will lead to a couple of fairly easy-to-predict outcomes for the population –
1. A shrunken set of mental devices for making sense of reality.
2. A shrunken set of imaginable options for addressing any problem.
3. A reduced vocabulary, resulting in a person being unable even to express their interpretation of reality or any ideas for solving problems.
In practical terms, this means that a large part of the population might be aware of problems in their society but, quite literally, cannot identify them: they can only sense them (intuit might be a better word), and ‘sense’ any solution; further, both of these ‘sensings’ can only be expressed in an inaccurate way. In effect, problems and solutions will be for many people the mental equivalent of a mosquito buzzing in their ear, which may explain why hearing them express themselves on these points reminds one of someone swatting an insect (9).
A couple of examples are in order. In 2012, it was reported that murderer Julian Knight would be represented by senior lawyer Robert Richter in an appeal against a refusal of parole. Comments on the website of radio station 3AW included the suggestions –
he’s given more rights than the average citizen and free legal assistance to boot … Bring back the death penalty and try this SOB again
In (sic) the off chance he is released I hope a victim’s relative puts a bullet in Richter and Knight both. That would be justice.
The cops who arrested knight (sic) that night in 1987 I believe regret not killing him
In a similar vein, a columnist for the Herald Sun newspaper, commenting on American gun laws, noted the existence of the Constitution’s second amendment, but showed no capacity (or at least, appetite) to address the legal and cultural complexities of amending the US constitution and contented himself with dismissing it by saying “that little document was drawn up a long time ago” (10).
Faced with the news that paroled offenders had gone on to re-offend, Herald Sun readers responded with (11) –
Parole Board members should be liable for their poor decisions. Perhaps then they would not be so reckless. Sue them.
[A]nyone who has killed, raped or molested should not be allowed out on parole. If you must have a Parole Board, put victims’ family members on it so other members know what the families go through.
Make non-parole sentences mandatory for violent crime.
Your victims don’t get a second chance, so why should you?
They get it wrong far too often. Just scrap parole altogether and save us a lot of grief and money.
And so on, and on, and on.
This insight into narrative suggests some extra tactics which a legal practitioner might find it useful to experiment with.
When taking instructions or interviewing witnesses, ask yourself what narratives they are using to make reality intelligible to themselves and to you. What are they innocently leaving out as ‘not plot essential’. Have they forgotten to mention something to a medical examiner, or mentioned it inaccurately, because their story can only ‘work’ that way?
Equally, without excluding relevant evidence or misleading the court, one could consider framing a case in line with a narrative of heroes, villains, redemption or happy endings that a jury can embrace. A jury itself could be offered the opportunity to see itself, at some level, as part of the narrative: the catalyst of the happy ending. A witness’ evidence – orally or on affidavit – could legitimately be crafted to make them a character in the unfolding drama. A party’s evidence might be shaped for them to emphasize a narrative which they can embrace and iterate and defend as part of their life story.
Ultimately, litigation is a business of applying a theory to whichever of a number of stories a court is persuaded reflects reality. Appreciating the impact of narrative on the accounts of parties and witnesses will add persuasive depth to the story one offers the court.
(1) Marc Mennessier, Neandertal aurait été submergé par le nombre, LE FIGARO (Paris), 28 July 2011.
(2) Hayden White, The Question of Narrative in Contemporary Historical Theory, 23 HISTORY AND THEORY 1, 22 (1984)
(3) Hayden White, The Question of Narrative in Contemporary Historical Theory, 23 HISTORY AND THEORY 1, 20 (1984)
(4) Dir. Neil LaBute, 2006.
(5) Dir. Rachel Ward, 2009. Ward herself recognized that these films struggle to draw more than a niche audience: Rachel Ward, Cut! Time for a free kick for niche Australian movies and their makers, SYDNEY MORNING HERALD, 28 August 2009.
(6) Dir. Murali K. Thalluri, 2006.
(7) Harold Bloom, Dumbing down American readers, BOSTON GLOBE, 24 September 2003.
(8) Andrew Marr, Death of the Novel, The Observer, 28 May 2001.
(9) Many of the ideas here – including the insectoid metaphor – I have derived from Theodore Dalrymple’s incisive essay The Gift of Language, CITY JOURNAL, Autumn 2006.
(10) Baz Blakeney, Going into bat for greater gun control, HERALD SUN (Melbourne), 17 July 2013, pp. 22-23. There is no internet version of this essay – get in touch if you’d like a scanned copy.
(11) Letters page, Board has failed us, HERALD SUN (Melbourne), 17 July 2013, p. 24. There is no internet version – get in touch if you’d like a scanned copy.