lawyer as storyteller

James R. Elkins

Portfolio Writings

Excerpt from the Course Syllabus: In "writing for the course," you will be ask to compile a portfolio of writings based on questions posed during the course and on inquiries that you devise in response to the readings and class discussions.

Keep in mind the following questions as you write for this course: How is this reading and writing about stories to be made a part of my education as a lawyer, as a part of the education that will allow me to be the kind of person I want to be? What am I supposed to do with what I learn, in this course, about stories and my own story sensibilities?

One way you might think about your writing for the course is by asking a rather basic question: What am I doing here? . . . in this course? . . . in law school? . . . trying to think about stories and how they can be put to use in my education as a lawyer?

There is no required structure for your portfolio writings. And there is no maximum page limit for the writings. Commonsense and experience suggests that those who write more tend to have more to say, and in saying it, present a broader, deeper engagement with the ideas advanced in the course.

By inviting you to create a portfolio of writings, I do not mean to suggest or want to in any way imply that anything goes, and that simply anything you write will get an A in the course. I take my own efforts at writing quite seriously; I expect you to do so as well.

If you have any questions—any questions at all—about your course writing, my expectations, and how this kind of writing can be done well and how it will be evaluated, then you should meet with me to discuss your concerns.

You can make your writing available for me to read at anytime during the course of the semester. I will not assign grades to your writings until the end of the semester. I will, however, be more than willing to talk with you about what I find as strengths and weaknesses in your work.

All of the portofolio writings I suggest during the course of the semester are just that--suggestions. I suggest things that I think might be of interest to read and to write, and might, in ways difficult to calculate or evaluate, be of value to you in both tangible and intangible ways. [For an essay exploring what the value and difficulties your colleagues found in introspective writing, see James R. Elkins, Writing Our Lives: Making Introspective Writing a Part of Legal Education, 29 Willamette L. Rev. 45 (1993) -- on-line text]

The following suggestions are not assigned writings; I leave to your discretion what you will write for the course.

Portfolio Writing1

Tell a story of how you found your way to this course.

Note1: The reasons you can list for enrolling in the course may hint at a story; they do not constitute the story.

Note2: When you explain how you decided to take the course, you will, I suspect, provide hints or an outline of a story. An explanation may, indeed, be given in the form of a little story, and then, it may not. You can certainly make use of explanation when you tell a story, but you may find that a story feels and sounds different from an explanation. [See generally: Katherine E. Rowan, A Contemporary Theory of Explanatory Writing, 5 (1) Written Communication 23 (1988)]

Note3: You may insist on the notion that you "enrolled" in the course and did not "find your way" to it, and thus, being in the course is so de minimus in the overall scheme of things that it does not constitute a story. Everything is not a story, you may want to argue. I don't know whether that turns out to be true or not, but it may be enough of an argument--a feeling--that it will get you off the hook for this little piece of writing! Just to insure that you not get off so easily, I'd propose this in response to your argument: You might try telling a story about how ending up in the "lawyer as storyteller" course is not a story! (With this move, I have countered the everything is not a story move with another: whatever you deem not to be a story is part of some story or other.)

Note4: In the realm of inspiration: Writers on Writing [YouTube video]

Note5: You are asked to write stories. How to get started: A Writer Talks About How to Do It [YouTube video] || Another Bit of Sage Advice [YouTube video]

Note6: Using what well-paid screenwriters know: Story Structure [YouTube video] [See generally: Robert McKee, Story: Substance, Structure, Style, and the Principles of Screenwriting (New York: Regan Books, 1997)(a readable and informative book; the one book on screewriting that every storytelling lawyer should read)]

Portfolio Writing2: Tell the story of how you found your way to law school.

Portfolio Writing3: What do you find in Jerome Bruner's Making Stories about how you might use stories as a lawyer?

Portfolio Writing4: One way you might want to write about "the lawyer as storyteller" is by reflecting on how legal education engages (or fails to engage) your story sensibilities and imagination.

As background for this portfolio writing, you might want to read:

Storytelling Across the Curriculum

Legal Storytelling--Reflective Writing Across the Curriculum

Portfolio Writing5: With so much attention to stories and narratives in the academic disciplines and in the professions, one would expect opposition. In this writing you might try to use what you've learned from Jerome Bruner and what you already know about stories to respond to the critics.

For one critic's response to the Bruner reading, and our consideration of what I have called the ubiquitous claim for stories--stories are everywhere and we can't get away from them and we can't live without them, and we never have--see British philosopher Galen Strawson's review of the Bruner book that appeared in The Guardian (January 10, 2004)[on-line text] [Prof. Elkins's notes on the Strawson review]

Portfolio Writing6: An Introduction to Stories

We must, in a course like The Lawyer as Storyteller, begin somewhere. But where? I asked you to read Jerome Bruner's Making Stories because he's an elegant writer, an eminent psychologist, and in recent years, has worked with Tony Amsterdam at NYU School of Law. He authored, with Amsterdam, a book titled Minding the Law (Cambridge, Massachusetts: Harvard University Press, 2000) that the dustjacket summarizes as focusing on "how courts rely on storytelling, and how their stories change the ways we understand the law--and ourselves." Minding the Law is a magisterial work on narrative jurisprudence, and carries with it enough of Bruner's notions of story to itself be a candidate for a beginning text.

We might think about still other candidates for "beginning texts," and I'd like you to consider the essays I provided you by Ken Sanes in this context. I stumbled on to Ken Sanes website, Transparency, some years ago and I've found Sanes's essays useful and instructive.

I knew nothing about Sanes until I returned to his website (2.3.2010) and learned that he lives in the Boston area and that he worked in the newspaper business for over 10 years, where he was an editorial writer and columnist. He created Transparency in 1997 to present his writings on media, popular culture, ethics, politics and human nature. Sanes takes pride in the fact that his website has been used in various college courses.

The essays I've asked you to read are as follows:

Contemporary Storytelling: Tales of Life Way After the Fall

"Most works of fiction, from movies to stories told around the dying embers of a campfire, work their magic on us by employing a single set of elements. They start by showing us characters who are in a state of exile from what they desire and who seek a kind of paradise in which their desires will be fulfilled."

"[We discover in] the stories of popular culture--in movies, TV, news, political speeches, advertisements, and so on--are based on . . . themes that center around our desire to evolve into whole selves and good societies, in the face of fears and desires, and obstacles that block our path."

Schemas and Stories

"In everyday life, people rely on cognitive models, maps or schemas of how the world works, to organize their perception of events and determine how to act. These models make up much of the structure of the unconscious mind, on which our conscious thinking and decisions are based."

Westerns: The Founding of Civilization As the Bridling of Masculine Desire

"Of the various genres of fiction, one of the most popular in America has been the frontier story, which tells about characters who establish and protect outposts of civilization. Typically, the outposts of civilization depicted in these stories--whether they are space stations, ranches, towns or forts--exist in a sea of dangerous nature that can close in at any time. Just as typically, they are threatened from within by characters who seem to have a little too much in common with the raw nature on the outside."

The Real Self in a Virtual World: Popular Culture as an Expression of Human Nature

"Everyone--at least everyone with a reasonably normal mind and brain--has a true self that is partly buried beneath their everyday personality. This self is who each of us is and can become when our natural growth isn't interfered with by personal and cultural neurosis."

Story-Based Simulations: Art and Technology Masquerading as Life

"[T]he representational arts [fiction foremost among them] offer us the illusion of an objective reality in which everything exists to expand our inner life. In the nonfiction world, we find ourselves in circumstances that are governed by physical laws or other people's desires or chance. However much we may like to think otherwise, most of our efforts to re-create this world so it takes note of our values and desires are unsuccessful. But the enchanted realm of the arts temporarily place us in fictional substitutes that are crafted ahead of time to revolve around us, in which sense and meaning are combined in ways that satisfy our hunger for new and pleasurable experiences, and give our inner life an intensity that is only rarely evoked by the nonfiction world."

In this Portfolio Writing, you are presented an alternative introduction to your work with stories. How does this introduction work in comparison to what you found in your reading of Bruner's Making Stories?

Portfolio Writing7: Drawing on Dr. Rita Charon's idea of a "parallel chart" for a patient, prepare such a chart for one of your law school classes. You will, of course, be assuming that the class is a "patient" and that the patient is now in your presence to speak of illness, an occasion for concern and for speaking out, even if the patient is for the most part silent about the exact nature of the problem.

To carry out this writing, you may want to review Charon's three movements in narrative medicine: attention, representation, and affiliation. How will you give attention to the class (and its operations)? How will you represent what you hear and what you see? What affiliation--with whom and for what purposes--will follow from your attention and representation?

Note1 (Rita Charon): "I began to write stories about patients who troubled or baffled me. The more I wrote about my patients and myself, the more confident I became that the act of narrative writing granted me access to knowledge--about the patient and about myself--that would otherwise have remained out of reach. I also realized that writing about patients changed my relationships with them. I became more invested in them, more curious, more engaged, more on their side." ~ Rita Charon, Narrative Medicine: Form, Function, and Ethics, 134 (1) Annals of Internal Medicine, 83 (2001)

Note2: On the writing of medical students and the preparation of what, Dr. Charon calls the "parallel chart":

I wanted to find a way to help the students focus on what they themselves were going through, and a way to focus on what their patients had to endure in the course of being ill. It's a tremendous cauldron of experience, and I wanted to have a way to let them reflect, consider, think about what they themselves were going through. And so I made them write. And I invented the Parallel Chart. I told them every day you write in the hospital chart of your patients. You may have 3, or 4, or 5 patients, and every day you write in each chart, and you know exactly what to write. It's very proscribed. I told them, there are things that are critical to the care of your patient that don't belong in the hospital chart, but they have to be written somewhere. And I would say, if you're taking care of an elderly gentleman who has prostate cancer, and he reminds you of your grandfather who died of that disease, every time you go in his room, you weep. You weep for your loss, you weep for your grandfather. I said, you can't write that in the hospital chart. I won't let you. And yet, it has to be written. Because this is the deep part of what you yourself are undergoing in becoming a doctor. Only when you write do you know what you think. And there is no way to know what you think, or even what you experience, without letting your thoughts achieve the status of language. And writing is better than talking.

Charon notes in a different article:

We all know what gets written in the hospital chart or the office chart. However, there are critically important aspects of the care of patients that do not belong in the hospital chart, but that, I submit, have to be written somewhere. In the Parallel Chart, students and doctors write about their own anguish in caring for patients as well as their victory when things go well, their rage and mourning and dread, their fear of mistakes, their inability to know what to do, their sense of loss as patients sicken, no matter what they do. And when students or doctors read to one another what they have written in the Parallel Chart, they take heart that they are not alone in their sadness and their dread, their sense of isolation among sick and dying persons diminishes, and they feel accompanied by their colleagues on their journeys." ~ Narrative Medicine [Dr. Rita Charon, LitSite Alaska]

PortfolioWriting8: Drawing on what you have learned about narrative medicine, design a series of law school courses on narrative law and legal storytelling that would introduce students of law to narrative concepts and practices. You might begin with law school orientation, giving particular focus to first year courses, and then determine what kind of advanced courses you would offer in the 2nd and 3rd years of law school.

Portfolio Writing9: I venture the following speculative bet: Gerry Spence knows nothing of Dr. Rita Charon's work. Dr. Charon in turn may never have heard of Gerry Spence. And yet, we find striking similiaries and shared deep roots in the narrative medicine of Dr. Charon and the know yourself story-based trial advocacy of Gerry Spence. Trace the work of these two seminal advocates and chart the overlapping conceptual basis for their work. You will, of course, find differences in their work, in particular their presentation, and you might want to try to explore these as well.

Portfolio Writing10: Drawing on Gerry Spence's Win Your Case, design a series of law school courses--a law school curriculum--based on Spence's concepts and practices. You might begin with an introduction to Spence's work during law school orientation, then focus on Spence-based courses for the first year curriculum, and then determine what advanced courses you would offer in the 2nd and 3rd years of law school.

Portfolio Writing11: As we focus our attention on the story-based trial advocacy of Gerry Spence, you may find it helpful to compare Spence's perspective with that of other story-oriented trial lawyers and legal scholars. Of particular interest is the work of Philip Meyer, especially Meyer's article on closing arguments, "Desperate for Love: Analysis of a Defendant's Closing Argument to a Jury,"18 Vt. L. Rev. 721 (1994). [Meyer continued to explore his thesis in "Desperate for Love" in Desperate for Love II: Further Reflections on the Interpretation of Legal and Popular Storytelling in Closing Arguments to a Jury in a Complex Criminal Case, 30 U.S.F. L. Rev. 931 (1996) and Desperate for Love III: Rethinking Closing Arguments as Stories, 50 S.C. L. Rev. 715 (1999)][See also: Philip N. Meyer, Making the Narrative Move: Observations Based Upon Reading Gerry Spence's Closing Argument in The Estate of Karen Silkwood v. Kerr McGee, Inc., 9 Clinical Law Rev. 229 (2002). You will also find of interest two additional articles by Meyer: Why a Jury Trial Is More Like a Movie Than a Novel, 28 J.L. Soc'y 133 (2001); Will You Please Be Quiet, Please: Lawyers Learning to Listen to Stories, 18 Vt. L. Rev. 567 (1994)]