(7) Legal storytelling
In previous classes we discussed that legislators, judges and administrators always have a discretionary choice in applying the law. This means that a lawyer will not only have to provide a plausible interpretation of the law, but also convince them to exercise this discretion in her clients’ favor. This, in turn, requires the lawyer to think about how legislators, judges and administrators perceive her arguments. In this blogpost, we will first look at how jurists really think (and how this differs from the common image of jurists rationally evaluating all relevant facts of a case), and how this can be relevant for you to make convincing arguments. Thereafter we will look at ways how to deal with the fact that jurists are not always deciding on rational grounds alone; in particular, we will talk about “legal storytelling”, which can help you make your argument more accessible and convincing than a “pure” doctrinal argument could be.
How we think we think is not always how we really think
In mainstream legal scholarship, jurists are often assumed to pass rational decisions after they carefully evaluated all the arguments (in this sense, Ronald Dworkin famously described the judge as “Hercules” in his book “Law’s Empire”). However, we already encountered a number or examples where legal decisions are in fact influenced by factors other than rational arguments, including the physical condition of judges (remember the “hangry” judges?), their beliefs and biases, or institutional dynamics. In other words, jurists are also humans. An important implication of understanding jurists as humans is to be aware of how humans think; and humans do not always think rationally.
This point can be illustrated as follows: pick a controversial political question — for example, the treatment of refugees, the economic crisis, or climate change; do you think that people (including you and me) form their opinions on these issues exclusively on the basis of a cool evaluation of all the facts, or are other factors (e.g. emotions, biases, personal experiences) also significant? I assume that you would agree when I say that political positions held by individuals are usually shaped by many factors other than good arguments alone. The same is true for any other issue that humans are busy with, and thereby also for legal decision-making: when jurists make decisions, they are influenced by numerous non-legal factors, and it is useful to understand what these factors are. In this context it is interesting to have a brief look at what scientists are saying about how humans are (really) thinking.
The psychologist Daniel Kahneman received the Nobel prize in economics(!) for his research on how humans make decisions. His most famous book is called “Thinking, Fast and Slow” — and it argues that we have two types of thinking — one that is rational and slow, and the other is intuitive and fast. Our fast, intuitive thinking is necessary so that we are able to react to the thousands of choices we have to make each day. However, this fast thinking may create certain fallacies (or “thinking mistakes”). In their fast thinking, humans employ “heuristics”, which are rules that serve as “mental shortcuts” that help us to quickly evaluate a situation without a long-winding analysis of all of its elements. However, these heuristics may sometimes lead us astray, creating so-called “cognitive biases”. Some of the cognitive biases identified by Kahneman include:
- Anchoring: if somebody is asked to estimate a number, and a certain number is proposed (e.g., are there more or less than 30% foreigners living in the Netherlands?) then people will orient themselves in their guess by the initial anchor number. → This is relevant for example if you are involved in a negotiation. The party that first proposes a number (e.g. how high the settlement should be) may thereby shape (or “anchor”) the remainder of the negotiations.
- Affect heuristic: emotions influence decisions. If a certain proposed activity triggers positive emotions, individuals consider the associated risk as low, and the other way around.
- Optimistic bias: humans tend to assume that they are less likely to experience a negative event than others; they are overconfident, which means that they make decisions only on the basis of factors they readily see, underestimating the likelihood of adverse factors.
- Confirmation bias: humans tend to search for and interpret information according to their previously held assumptions, and tend to reject contradictory evidence.
- Hindsight bias: after an event occurred, it appears to be the only logical development.
- Correspondence bias: when humans try to find an explanation for the behavior of another person, they overestimate explanations that root in the personality of that individual, and underestimate the importance of structural factors (e.g., a hedge fund manager who deceived her investors is seen as a case of an individual behaving badly, rather than as a behavior facilitated or even encouraged by the way the financial sector operates).
- Framing: humans respond to a specific choice differently depending on how it is presented. Take the question whether refugees should get access to proper housing: people may react one way when they learn about individual cases of homeless refugee families, but another way when they are confronted with reports about the number of refugees entering the country, and the overall costs this creates for the public.
→ think for a few minutes how these cognitive biases may influence legal decision-making, and which strategies you could employ to counter them! Can you think of examples, e.g. from your field of expertise? If you are interested in the issue, you may also want to look at this longer list of cognitive biases.
In their famous book “Metaphors we live by”, the linguists George Lakoff and Mark Johnson argued that humans think in what they call “conceptual metaphors”. These are often shaped by images that stem from direct human experience of the physical world and of their social environment. Especially abstract concepts or processes can only be thought about in a metaphorical form:
- International migration is often described as a flow (e.g. like a river). Measures that regulate or limit migration are imagined as barriers which may direct or halt the flow.
- In trade and investment law, trade in goods and cross-border investment is similarly imagined as a flow; national regulation (e.g. labor or environmental regulation) is imagined as an “obstacle” or “barrier” to these flows (i.e., like a dam that blocks the natural flow of a river).
- International relations are often described similar to group behavior, and each country is imagined as a character (e.g. “Russia feels humiliated”).
- Legal processes are often imagined in physical terms as a form of a movement (e.g., the court is “moving towards” a certain understanding in its case law)
- Rules or legal processes are often conceptualized in physical terms: for example, an interpretation is “expansive” or “restrictive” (this metaphor relates to space), standards may be “high” or “low” (relating to height) or policymakers may pursue a “hard” or a “soft” line (relating to the physically perceivable quality of materials).
Metaphors like these shape how we understand all kinds of (legal and non-legal) phenomena. Metaphors may be necessary to understand complex societal phenomena as well as abstract (e.g. legal) concepts, but they may also put limitations on how we think about them. For example, if your legal argument does not conform to the metaphorical form usually employed to conceptualize a certain phenomenon, you may have a difficult time in convincing others of your view. You can deal with dominant metaphorical representations in various ways:
- sometimes jurists attempt to put a spin on the dominant metaphor (e.g. building on the metaphor of refugee “flows”, it is sometimes argued that erecting barriers to halt the physical movement of individuals will be futile, as refugees will — like water flowing around an obstacle — find another way to enter the Union → The metaphor is thus “spun” in order to make the opposite argument of how it was initially intended.)
- They may also adopt an alternative metaphor (e.g., social and environmental regulations are described not as “obstacles” to “trade flows”, but as the “rules of the game” which create a “level playing field” → thus, the “flow” metaphor is replaced with a sports metaphor that gives a different meaning to e.g. environmental regulation).
- Finally, the dominant metaphor can also be made explicit, and then rejected as too simplistic (“thinks are more complicated than that”) or as inappropriate (“refugees should not be described in such way”) or even deceiving (“the metaphor creates the wrong impression that …”).
→ Can you think of other metaphors that shape our understanding of law? Which metaphors shape your field of expertise?
Cognitive biases and “conceptual metaphors” are just two examples of how the reality of human thinking does not conform to the idea of humans acting on the basis of rationally grounded choices alone. When you make a legal argument (both in your thesis and in your later professional practice), you might want to take these characteristics of human thinking into account — at least if you want your argument to be successful. One way of doing so is to think of legal argumentation in terms of storytelling, which is the subject of the remainder of this post.
What is a good story? Think of your favorite book or movie — what do you like about it, what makes it so good? Essential features of a good story usually are:
- a gripping plot, often taking the form of the “hero’s journey”.
- Characters that are relatable or resentable, sometimes stylized as the “good” and the “bad guys”.
- an underlying “morals” or “lesson” (e.g., love wins, good triumphs over evil, sinners are forgiven, effort will be rewarded, etc.)
If you watch US courtroom series or movies, there is often a scene where the prosecutor or attorney addresses the judge or the jury to make a passionate statement. Rarely do they merely recount the facts and recite all the applicable law. They do more — but what? Usually their statements exhibit the characteristical features of a good story: they tell a gripping plot, they cast the parties as the “good” and the “bad guys”, and they frame the case in terms of “morals”.
The following Youtube clip shows parts of the opening statement of David Crane, who was the chief prosecutor of the Special Court for Sierra Leone — pay attention not only to what he says, but also to how he says it. In particular, try to identify what “story” David Crane tells: what is the plot? Who are the characters, who are the “good” and the “bad guys”? (I owe this example to my colleague Sofia Stolk, who wrote a fascinating article on opening statements at international criminal trials).
The opening statement does not merely lay out the legal arguments of the prosecution — rather, it uses strong images (“the path will strewn with the bones of the dead”; “light of truth, the fresh breeze of justice”), and appeals to emotions. At the end, David Crane even cites from a poem written by one of the victims of the civil war in Sierra Leone. The opening statement can be analyzed as a story, featuring the elements we discussed above. Take for example these quotes:
- “On this solemn occasion, mankind is once again assembled before an international tribunal to begin the sober and steady climb upwards towards the towering summit of justice.” → this describes the “plot”
- “The rule of the law marches out of the camps of the downtrodden onward under the banners of “never again” and “no more.” A people have stood firm, shoulder to shoulder, staring down the beast, the beast of impunity. The jackals of death, destruction, and inhumanity are caged behind bars of hope and reconciliation.” → this defines the characters: the “rule of law”, “the downtrodden”, “a people [that] stood firm” are set against “the jackals of death” and “the beast of impunity”.
- “The light of this new day — today — and the many tomorrows ahead are a beginning of the end of the life of that beast of impunity, which howls in frustration and shrinks from the bright and shining spectre of the law. The jackals whimper in their cages certain of their impending demise.” → This defines the “morals” (rule of law vs impunity, the “good guys” prevail over the “bad guys”)
Why do lawyers tell stories?
- Most obviously, the prosecutor appeals to emotions. A judge may relate more to concrete examples of suffering than to abstract accounts of the facts (Derrick Bell wrote: “People are moved by stories more than by legal theories.”)
- Moreover, a story establishes a guiding path through the uncountable facts that will come up in the proceedings. People remember facts better if they are connected to a story, and stories help them to distinguish between which facts are essential and which are not.
- Stories provide a value framework that may influence how the judge views the issue in question.
- Finally, a story may help to link the specific case in question to a broader theme. For example, David Crane invokes the holocaust (“never again”) and the second world war (“1945”), as well as the genocides in Rwanda and Yugoslavia. This serves the purpose of legitimating the Special Court for Sierra Leone: everybody agrees that these events were horrific, and in all three cases there were special tribunals installed afterwards to deal with the crimes committed → this suggests that also the Special Court for Sierra Leone is legitimate.
→ What kind of story could you tell through your research? Who are the “characters”, what is the “plot”, and what are the “morals”?
Storytelling takes place in legal discourse in numerous forms:
- Jurists often revert to a form of storytelling when they discuss case law. Here, the (abstract) legal issues are discussed through (concrete) individual cases. In this, the cases are not mere illustrations of the underlying legal principles: rather, they shape the common understanding of them. In other words, by telling stories of how legal principles are playing out in practice we understand how these principles work.
- Another common form of legal storytelling happens as part of “strategic lawyering”. This term describes the use of lawsuits as part of a broader political strategy aimed at reaching certain political objectives. Here, the specific legal case is carefully chosen, in order to achieve maximum results. Political strategies that include “strategic lawyering” may be simple (e.g. focused on bringing one specific case to a specific court) or complex, including multiple steps. For example, early cases (e.g. on marriage equality) may be aimed at stabilizing an already existing line of reasoning by courts. Once this basis is established, further-reaching cases can be brought, which aim at achieving a more fundamental ruling by e.g. the constitutional court. “Strategic lawyering” therefore tries to build a narrative within the case law ultimately serves its political objective. “Strategic lawyering” is usually assumed to go hand in hand with political lobbying and grassroots mobilization. The court cases thereby form part of a larger story of political change.
- Legal scholars may use their own lives as “stories” in order to make their legal arguments more accessible. Kenji Yoshino’s book “Covering: The Hidden Assault on Our Civil Rights” is such an example. Yoshino describes “covering” as a practice in which individuals do not hide their identity (e.g. a gay man who acts straight), but they nonetheless feel pressured to conform to the standards and behaviors of the white mainstream culture, and they are punished for failing to do so. For example, a black woman working in airport security is prohibited from wearing braids — while this prohibition is packaged as a demand of the employer that its employees dress professionally, in practice it requires a black woman to abstain from wearing a hairstyle appropriate for her hair, and adopt a “white” hairstyle instead; she is therefore forced to “cover”. Yoshino, a gay Japanese-American law professor, illustrates and explains “covering” with examples from his own life. For example, at the university he used to work at, he was initially advised not to “flaunt” his sexual orientation; he therefore felt the pressure to perform a straight-acting personality (which prevented him, for example, from bringing his partner to work functions, whereas his straight colleagues could do so without problems). By giving a touching account of his own struggles and relating them to discrimination cases, readers are helped to understand “covering” as a complex form of discrimination, which in turn has implications on how one conceptualizes discrimination in legal terms.
Here is a great example of storytelling about law: the podcast “More Perfect” brings stories about the US Supreme Court, and discusses important cases and legal principles along the way:
How did the Supreme Court get so supreme? On this episode of More Perfect, we go all the way back to a case that, in a…www.wnyc.org
Legal storytelling in practice: Prop 8 and the fight for marriage equality in the United States
Maybe the most illustrative example of “strategic lawyering” and the role that legal storytelling plays is the decade-long campaign in the US to legalize same-sex marriage. It found a successful conclusion with the case Obergefell v Hodges (2015). After early court successes for advocates of marriage equality in the mid-2000s, conservatives successfully pushed for constitutional amendments in various US states prohibiting same-sex marriage. Among them was Proposition 8, which successfully included such prohibition in the Californian constitution in 2008. LGBT organizations agreed that their previous strategies had focused too much on litigation alone, which had then produced a popular backlash (illustrated by the fact that even the fairly liberal population of California voted in favor of a constitutional prohibition). Consequently, they decided to advance slower, expanding their campaign to all states (and not just to the most liberal ones), and embedding litigation in a broader strategy which also aimed at shifting the majority view on marriage equality. An early step of the strategy was to get a court to invalidate Proposition 8, which succeeded in 201o in the case Perry v Schwarzenegger. The closing arguments were subsequently turned into a televised stage play, which featured numerous famous actors (Brad Pitt as the judge, Martin Sheen, George Clooney and Kevin Bacon as attorneys, as well as Jamie Lee Curtis, Jane Lynch, George Takei and Jesse Tyler Ferguson → see link below). This shows how the court case is in turn employed within the broader political campaign to build consensus around the issue of marriage equality.
The film also shows another aspect of “strategic lawyering” that can be analyzed from a perspective of legal storytelling, namely the choice of plaintiffs. The choice of plaintiffs in a case with such high stakes is of particular importance. The specific situation of the plaintiffs should not put the broader political objective at risk (this would be the case for example, if the judge would rule against the plaintiffs on grounds specific to the individual case). Moreover, the plaintiffs should be relatable for the judge. Finally, the plaintiffs should match the broader storyline that LGBT organizations wanted to tell. In the case of the campaign for marriage equality, they emphasized family values and relatively traditional family structures, thereby positioning themselves against the conservative claim that same-sex marriage would undermine traditional families. Consequently, plaintiffs were chosen that conformed best to the idea of a traditional family, with the sole difference that the parents were of the same gender. This can be seen for example when the family is first introduced in the play, which is at minute 5:00 → I highly recommend watching the film, at least in parts.
Uncovering hidden stories
Storytelling is a tool that you can employ to strengthen your arguments. However, stories may also work against you:
- this is most obviously the case when the opposing site also tries to build a story, frame the narrative and the parties. For example, while you may want to tell the story of race-based workplace discrimination, the attorney for the employer may build a story of an employee who refuses to adopt professional standards that everybody (including the judge) is subject to.
- More generally, legal fields are frequently shaped by hegemonic narratives that might work against you. For example, international trade law is often embedded in a narrative where more trade is associated with openness, innovation, progress and cosmopolitanism, whereas any potential obstacle to trade (such as labor or environmental regulation) is equated with protectionism and nationalist chauvinism. If you are charged with defending e.g. a national environmental measure, you will have to challenge this narrative in order to be successful. The story that you want to tell might then conflict with the hegemonic story that dominates the legal field. For example, advocates of a fair asylum system are confronted with a narrative that emphasizes national security aspects; a hard line on asylum seekers finds justification in a story that tells of asylum seekers as security threats.
→ try to think which narratives shape the legal field that you work in or that you have encountered during your studies!
A specific problem is that some stories are so dominant that most people mistake them for the truth. Such story can be described as the “hegemonic narrative”. We encountered one example in our discussion of Kenji Yoshino’s book “Covering”: the situation of white straight males is perceived as the standard, so that the situation of everybody who does not conform to this model is seen as a deviation — the experience of the Japanese-American gay professor or the black female security agent are perceived as individual experiences, whereas the behavior of white straight males is the norm. This may have significant legal implications: for example, the experience of asylum seekers who attempt to reach Europe by sea is perceived as a deviation — so that the protection of their lives does not seem to fall under what is usually the most important fundamental right, namely the right to life.
Hegemonic narratives may constitute a significant obstacle for you to pursue your objectives. If your view runs counter to the hegemonic narrative, then you do not merely have to convince e.g. a judge or a reader that your view and not that of your opponent is correct, but that their perception of truth is merely a “story”. Challenging hegemonic or “hidden” narratives is a characteristical feature of the so-called “critical” approaches in legal scholarship.
We discussed the following issues:
- Jurists make their decisions not only on the basis of rational arguments. Rather, they are frequently influenced by other factors.
- When humans make decisions, they may be influenced by cognitive biases. Moreover, human thinking is structured by metaphors, which shapes our understanding of abstract (e.g. legal) concepts. These factors should be considered if you want to make a successful legal argument.
- Legal storytelling is one strategy to make your argument accessible and convincing.