Give Them Back Their Lives: Recognizing Client Narrative in Case Theory

Abstract

* Associate Professor of Law, The American University, Washington College of Law. B.A. 1978, Carleton; J.D. 1983, University of Chicago. Ed. I thank Robert Dinerstein, David Chavkin, Stephen Ellmann, and Nancy Polikoff for thoughtful responses to earlier drafts of this article, David Marin and Sara Shepard for helpful research assistance, and the participants in the Mid-Atlantic Clinical Theory and Practice Workshop and the New York Law School Clinical Theory Workshop for valuable comments. I am especially indebted to Miriam Ruttenberg for wide-ranging research support and astute feedback about the ideas in this article, Liz Seaton for incisive editing and farseeing conversations about the politics of sexual orientation and case theory, and my colleagues in the clinical program at The American University, Washington College of Law, whose insights about lawyering have shaped my work as a clinical teacher and scholar. I also thank my partner Ruth Eisenberg and my friend Michele Wolin for their generous personal support. Because all writing builds on lessons from the past, I dedicate this article to the memory of my mother, who loved unstintingly through pain and adversity, and who taught me the significance of perspective and the value of empathy. 1. See Symposium, Lawyers As Storytellers & Storytellers As Lawyers: An Interdisciplinary Symposium Exploring the Use of Storytelling in the Practice of Law, 18 VT. L. REV. 565 (1994); Symposium, Legal Storytelling, 87 MICH. L. REV. 2073 (1989); Symposium, Speeches from the Emperor's Old Prose: Reexamining the Language of Law, 77 CORNELL L. REV. 1233 (1992). 2. See, e.g., Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 MICH. L. REV. 2459, 2463 (1989); Steven Lubet, The Trial as a Persuasive Story, 14 AM. J. TRIAL ADVOC. 77, 77 (1990); Sharon Creeden, Telling Your Client's Story to the Jury, TENN. B.J. May-June 1991, at 10, 10. 3. See, e.g., Charles R. Lawrence, III, The Word and the River: Pedagogy as Scholarship as Struggle, 65 S. CAL. L. REV. 2231, 2278 (1992); Kim Lane Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2073 (1989). The relationship between law, storytelling, and progressive lawyering is brilliantly portrayed by Gerald L6pez, perhaps the foremost proponent of this genre, in his path-breaking work Rebellious Lawyering. See GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1992). For a thoughtful analysis of L6pez's ideas, see Anthony V. Alfieri, Practicing Community, 107 HARV. L. REV. 1747 (1994) (book review). The idea of voice and narrative is also the focus of much academic literature from other disciplines, including literature, anthropology, political science, and history. See, e.g., JAMES MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA at ix-x (1988). For a critique of the legal narrative movement, see Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807, 840-54 (1993) (arguing that objective standards should be used to evaluate narratives and that much narrative scholarship falls short of these standards).