Constructing Legal Narratives: Client-lawyers’ Stories

Chapter 6

Constructing Legal Narratives: Client-lawyers’ Stories

Flora Di Donato1

In this chapter, I would like to look at some characteristics of legal narratives within judicial proceedings. The underlying research interest is to investigate the contribution of lay people in constructing legal meanings. In other words: how the client takes part in the construction of his or her case in collaboration with the lawyer, and how the client’s (cultural) representation of the facts is able to affect the way in which a legal story is presented by the lawyer in court.

The chapter is oriented towards a psycho-socio-cultural perspective that considers stories as “a way of world-making” in legal contexts. A major source of inspiration for choosing this approach to the study of legal narratives has been the works by Jerome Bruner—also in collaboration with Anthony Amsterdam (Amsterdam and Bruner 2000). His most important contributions to the Legal Storytelling movement concern some fundamental epistemological aspects.2 Bruner (1991; 2002) claims that the narrative structures of the mind are the same in the context of the everyday as they are in the context of law: stories in literature and stories in law can accordingly be considered alike, in that both always involve the activity of constructing the reality narrated. In fact, according to his perspective, human beings actively construct social reality through narrative negotiations of daily meanings that are deeply rooted in culture (Bruner 1990).

This study intends to be an application of this type of approach. It focuses on the socio-cultural relations from which (legal) narrations are originated within the legal context. A qualitative analysis of several labor law and family law cases is complemented by interviews with clients and lawyers, thus making it possible to investigate the roles of those actors in constructing the legal facts, as well as some of the aspects of the relationship between them. Thanks to several examples, it is possible to trace the development of the legal narratives from the client’s representation of the daily facts to the lawyer’s legal definition. It starts by referring to some of the pre-existing and most recent studies on legal storytelling and their influence on legal theory. This is followed by a discussion of a “constructivist perspective” applied to the legal discourse, with a focus on the role of human beings in producing legal meanings. Subsequently, this chapter will try to answer two questions: Where do the legal stories come from? Which kinds of violation are able to provoke a legal narrative? The structure of a story will be illustrated, and the results of a qualitative analysis shown. The second section of the chapter will focus on the client’s and lawyer’s role in constructing the legal story. Emphasis will be given to the client’s initiatives within the relationship with the lawyer, as well as the opportunity for him or her to have a “voice” within the judicial proceeding. Finally, I will discuss the findings, highlighting the different characteristics of the lawyer’s discourse in relation to the client’s.

Storytelling and Legal Studies: A Brief State of the Art

The consideration of stories within judicial proceedings as narratives is typical of a postmodern approach to the study of law that integrates the appeals coming from the world of law with those from the world of literature, literary criticism, philosophy and theory of law. This is the Law and Literature movement,3 which originated in the United States but has recently become more widespread and recognized in both European as well as Italian cultural, scientific and academic spheres.4 It is well known that this movement was founded with the aim, on one hand, to give jurists a literary and humanistic sensitivity (law in literature) , and on the other, to invite jurists to a critical reading of the law through the use of literary techniques for the interpretation of legal texts (law as literature). In a more recent phase, it has been orientated towards the consideration of law as narrative or law as narrative construction .5 In fact, one of the main purposes of the Law and Literature movement is to bring to the attention of scholars the relationship between the legal text and the narrative process through which the law itself is originated as a legal and human experience.

Since the beginning, the study of legal-judicial narratives has seemed to follow, to a certain extent, an autonomous path, making use in many cases of the contribution of social psychology. At the beginning of the 1980s, Bennett and Feldman (1981) carried out a study that introduced for the first time the theory—not without criticism—that the “effective” representation of a case in court depends above all on the storytelling ability of the legal actors (accused, lawyers, witnesses). According to Bennett and Feldman, jurors tend to base their decision on an evaluation of “plausibility” and “coherence” of the stories narrated, as well as considering them on the whole rather than on the verification of the truth of the facts.

In 1989, there was a symposium at the University of Michigan dedicated to Legal Storytelling. It was an event that scholars judged as “significant,” considering it to be an indication of the opening of the Law School to a different approach to law. The stories narrated in a trial, in addition to representing the “diversity” (men/women, white/colored), have the power to represent the “reality” to start from different points of view (individual, social, cultural, legal) from which they are informed.6

In fact, following the important season of American legal realism, which had the merit of drawing attention to contexts of production of legal decisions, the influence of the Law and Literature movement will be a decisive turning point of legal studies in a more definite direction, represented by a growing interest in understanding the connections between human-daily dimensions of legal problems and the practices of law. The efforts of scholars aim to understand how “daily problems” are translated into legal cases. This deals with the postmodern awareness that the law should consider more definitely the “life of people” it is aimed at. Lawyers are encouraged to personalize client’s stories, to tell their story rather than resorting to “typical stories.” Judges are invited to consider the context in which the case is constructed and recognize the story that every part presents as “unique.” In summary, legal studies have focused more definitively on the narrations used by lawyers and judges, as well as anyone else within the legal system contributing to the creation of legal meanings.7

This change of direction in legal studies will also determine the confirmation of a new orientation of studies that will signal the founding of the Lawyering Theory Colloquium (1992), thanks to the support of contributions coming from other disciplines. A significant contribution is due once again to the fruitful association between the theory of law and (social and cultural) psychology.8 I am referring in particular to the noteworthy work of Amsterdam and Bruner, Minding the Law , published by Harvard University Press (2000). The book, which is considered a “turning point” in the study of judicial storytelling, considers the law as “a storytelling enterprise thoroughly entrenched with culture.” In fact, the aim of the authors is to explore the underlying relationships between the judicial opinions (of the American Supreme Court) and the American culture of which they are considered expressions.

Stories as “a Way of World-making”: An Interdisciplinary Approach

Stories and narrations are essential in the context of legal-judicial proceedings as they represent the main tool for organizing and interpreting the pieces of information, fragments of reality that can be reconstructed as a coherent order of data—in other words, “facts” (Twining 2006; Taruffo 2009b).

However, to tell a story is not just a way to give a (legal) order to the reality violated by infractions, violations. According to a constructivist epistemological approach, to tell a story (even a legal story) means “to shape reality” within a cultural frame: “knowledge is never ‘point-of-viewless’” (Bruner 1991, 3). In fact, starting from Vygostky’s ([1934] 1962) concept of the language as a “cultural product,” the anti-positivist Bruner’s position is that “cultural products, like language and other symbolic systems mediate thought and place their stamp on our representations of reality.” Therefore, the narration represents the key to resolving the problem of “the translatability of knowledge from one culture to another” (Bruner 1991, 3).9 In a constructive-culturalist perspective, the “world” is not defined as simple “reality,” but rather the “meaning” that the people attribute to it. It is a non-individual process, carried out within a community whose members can communicate and interact together, assuming a common ground that emerges from the social exchanges (on the basis of scripts, stereotypes, common meanings and so on) (Bruner 1990).10

They are the stories, narrated in both daily and institutional contexts (such as legal and judicial ones), making the cultural cohesion and creation of legal meanings possible (Bruner 1990; Bruner 2002). It is a process that is not automatically imposed from “above” by the State and the other institutional representatives (judges, lawyers, professors), but comes from the “bottom” (Cover 1983), from the “ordinary” people (Merry 1992), the human beings, all those people who have an “active” role in the construction of the social and legal reality of which they are part. Naturally, meanings negotiated and given by individuals to their world become patterned, established, objectified in virtue of the rules, the role of the institutions (courts, legal offices, schools, laws, codes and so on). They “bridge”—according to a well-known metaphor by Cover (1983)—between the starting reality, intended as cultural visions, and the “possible” and “alternative” social and cultural constructions of reality.

Where Do (Legal) Stories Come From?

What are the origins of a (legal) narrative, and what phases does a “human story” pass through in order to evolve into a “legal story”?

The story starts from the moment of the breaking point of a legitimate situation (Amsterdam and Bruner 2000), which can correspond, simply, to a violation of a cultural script which, for example, has to deal with behavior that normally is held or we imagine we must hold when we are at the post office or the restaurant, or that (more probably) can have to deal with the violation of a rule of law. For example, Mister X hasn’t stopped at a red traffic light; Mister Y has been unfaithful to his wife; the Company X has given inferior duty to Miss Y, rather than the once set out in the contract.

It is easy to observe that, either in the case of the infraction of a behavior rule, such as “queuing at the post office,” or in the case of the violation of a rule of law—like the reciprocal fidelity obligation (set out in Article 143 of the Italian Civil Code)—we are in the presence of meanings that we assume to be prescribing rules in the context of a culture.

Not every trouble that disturbs the legitimate order of reality is able to start a legal narrative (Amsterdam and Bruner 2000, 129–31). As is well known, remarkable violations of the law can be determined only with reference to the rules of law within a specific legal system: the trouble needs to be transformed into a recognizable legal problem.

Let us consider a typical plot of a (legal) story11 (Amsterdam and Bruner 2000, 113–14):

1. an initial steady state grounded in the legitimate ordinariness of things: In 1999, a dear friend and colleague, who I meet while working as an intern in an important Neapolitan office, invited me to come and work as a manager of monitoring and accounting of the management of European Funds. He introduced me to the general director of the “territorial agreements” (drawn up between the council and province) and we started to collaborate in managing these funds. In the space of two years, we managed to spend eight hundred million funded by the European Union without wasting any public money. In a very closed environment, we became “market-leaders”. We received calls from everywhere [in our region], even from very difficult contexts in the province of Naples. It was informally organised, we were four professionals: a general director, an administrative director, I was nominated general coordinator.

2. that gets disrupted by a Trouble consisting of circumstances attributable to human agency or susceptible to change by human intervention: The relationships [among colleagues] that were also highly emotional, at a certain point, started to deteriorate. The administrative director, at a certain point, wanted to take over as the general director (the boss), he was bored with being the number two. In the meantime, a fifth person had entered the group, a woman, who was having an extra-marital affair with number two. This woman saw number two as a way to make rapid carrier progress. Number two loses his head—notwithstanding my insistence and requests for a more sober behaviour—he buys a €50, 000 car, holidays, jewellery. In particular, he violates the pact to not make any deals with local politicians.

Last year, on the 24th July, by complete surprise, he called the six partners of the firm together and obtained the unjustified dismissal of number one, being subsequently nominated in his place. I was replaced.

3. in turn evoking efforts at redress or transformation which succeed or fail:

On the 25th July as part of my duties as secretary of the meeting held on 24th July, I faxed all the partner agencies, as well as the President of the Board of Administration, a copy of the minutes of the meeting and invited the mayors as well as the President “to give any opinions … with the aim of not prejudicing the rights of the partner agencies”. The following day, the President of the Board replied warning me ….

4. so that the old steady state is restored or a new (transformed) steady state is created:

The organizational set up was subsequently modified, I was assigned an exclusively internal role, which I was not interested in. I was also asked to be more flexible, to meet the needs of politics. I am also literally asked “to behave”. Obviously, I didn’t accept. All my duties are subsequently taken away.

5. and then story concludes […] with a “coda” :

I do not know how to be dishonest.12

The articulation of Nunzio’s story, according to the model proposed by Amsterdam and Bruner (2000), highlights how a narration is made up of a particular sequence of events in which human beings are the protagonists who behave as “actors,” with “intentions”: Nunzio and his colleagues. The events and characters that exist in reality acquire specific meanings within the narrative plot: the protagonists (the antagonists) are described by Nunzio as “number one,” “number two,” according their hierarchical position within the professional context and their specific aim of having a successful career. The story is provoked by the violation of the legitimate initial situation. In this case, it is not only the violation of the rules of law, but also the behavior rules among the protagonists (rule of loyalty and correctness in the relationships between colleagues). The narration is an attempt to restore the status quo: the mediation between Nunzio and his colleagues will not be enough; they will have to go to a lawyer.

Narrations and (Social) Relations: A Qualitative Analysis

Nunzio’s story, as described above, is part of a much larger corpus of data that deals with labor law and family law cases, analyzed in the first degree. The aim of the research13 is to describe the stories in terms of socio-juridical relationships within the legal context in order to show that the construction of legal meanings is a normative process permeated by social relations.

The investigation focuses on the analysis of the official documents as well as the transcripts of interviews with clients and lawyers. The analysis is complemented by the client’s notes (a written record drafted upon request of the lawyer containing all the information and details of the case for which legal advice is sought). Starting from the results of the research, it seems that the trouble—what provoked the narration—can have its origin within a relationship between two or more interacting actors who do not share the same representation of reality. It can be a case of mobbing,14 within the professional context—as we see in Nunzio’s case—but it can also be a matter of the separation dynamic between spouses, conditioned, if not also determined, by conflict in the enlarged family context. The trouble seems to flow, every time, from a tension or from a conflict between the different intentions of the protagonists of the narrative plot. Specifically in the labor law cases, we deal with the tensions that relate to the definition or redefinition of the roles played by the protagonists, about their hierarchical position within the company context, for instance. All the actors present on the scene can be involved, and normally they are, from the co-workers to the addressees of the professional services (who can include the company clients as well as the patients of a medical structure).

Several parts of Angela’s story are reported below as an example. She was a psychotherapist in a healthcare structure, and was a victim of mobbing carried out by her employer (Example 1) and supported by her co-workers (Example 2):

(1) My relationship with XXX (employer) worsened […] from the moment I told him what I didn’t like about him […]—Angela

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