Whose 'version' of the facts? Working on the margins of outsiders' stories and lawyers' theories of the case

In their paper Robert McPeake and Marcus Soanes (City University) looked at the ‘versions’ of the facts of a case – outsiders’ stories and lawyers’ theories – and explored methods of injecting reality into legal education.

The session was blogged on Digital Directions, and Robert and Marcus’ slides are embedded below. See the other paper in this session, Exhuming human remains from case law, for further insights into why and how law teachers are taking steps to try to increase students’ awareness and understanding of the real life story of the client at the heart of each reported case.

This paper explored methods of injecting reality into legal education through concepts of storytelling, and in particular consideration of the ownership of the outsider’s story. This multi-faceted approach confronts students with some of the ethical flashpoints that can occur along the border between the client’s story and the lawyer’s theory of the case.

Trial lawyers are ends-driven problem solvers who represent their clients’ interests to gain the most satisfactory outcomes. They operate within justice systems wherein tensions of power and agency are played out in elaborate ways and are resolved sometimes by a decision of the court and at other times outside the courtroom. Practitioners have to balance their professional obligations with the needs of judges, opponent lawyers, witnesses, jurors and, above all, their clients.

Students are equally ends-driven. Their major objective is the requirement to evidence their knowledge and understanding of law in coursework and the exam hall. The educational context shifts the focus away from the needs of the client, because consideration of legal doctrine and systems privileges legislation, case law, philosophical literature and legal structures. In this milieu it is understandable that students have little concept of how clients (re-)present their life stories and the dilemmas that have brought them to law.

Neither traditional curricula nor unpredictable court visits are ideal vehicles to introduce students to the realities of real life clients and the ethical dilemmas which practitioners encounter. However, educators can introduce students to legal reasoning, case preparation methodologies and courtroom advocacy skills in a ‘truer’ context – in the presenters’ experience, one that takes into account the common law adversarial system in which individual defendants are pitched against the machinery of state prosecution systems.

Working with law students on their learning within the affective domain is not straightforward and much undergraduate and vocational legal education avoids this, focusing instead on either learning the law – substantive and adjectival – or legal skills (case analysis and advocacy, for example). Whilst opportunities exist in both contexts for work on students’ attitudes and values, these tend to occur in optional subjects and are not experienced by all students. Even in a context that should be open to such learning the opportunity is not always taken (see for example Lubet, 1994, at p82; Menkel-Meadows, 2000, at p787 writing about the situation prevalent in the US since 1986).

Our experience of working with students on ‘outsider’ stories derives from our work on an LLM module on criminal advocacy, part of an LLM on Criminal Litigation.. The module gives students the space to look at both the theories which underpin advocacy and its practice. Students on the LLM are a mixture of younger postgraduates, typically immediately pre- or post-vocational training, and professionals working in the criminal justice system, such as police officers, solicitors, barristers and caseworkers from the Crown Prosecution Service. Amongst both groups we have a mixture of UK and international students.

Included within the module is a series of seminars looking at persuasion as a central function of advocacy. Students examine persuasion from a variety of perspectives – the lawyer, the client, the decision maker, and one of our aims is for them to think about the ethical dimension involved in being an advocate. One way we have developed for working on this is through the consideration of what are sometimes described as ‘outsider stories’. In a sense, this draws on a broader theme – the drive for lawyers and law students to see the client as a three dimensional person and not as a convenient peg on which to hang a legal theory or argument.

We have found that this can be explored by looking with our students at issues such as client autonomy in the lawyer-client relationship and the choices and decisions made by lawyers in formulating a case theory before trial and then presenting it at trial (see for example Cunningham, 1989). We introduce our students to some of the concepts behind lawyers’ use of stories in court, such as story framing (Lubet, 2001; Bennett & Feldman, 1981), stories as an aid to decision making or the perception of evidence (see for example Pennington & Hastie, 1991) and the concept and evolution of a case theory (see Ohlbaum, 1993; Miller, 2002). We also look to the professional codes of conduct as one source of guidance on ethically correct behaviour. Finally, we consider the pragmatic issues that underpin persuasion – the imperative to succeed in having the court accept your client’s version of events and handing down a judgment in his or her favour – and contrast this with a more long term aim of achieving law reform (see for example Armour, 1995; Sarmas, 1994).

We have found that consideration of real cases which involved, actually or potentially, the use of an ‘outsider’ story is an excellent methodology for examining these issues (see also Menkel-Meadows, 2000, at p787). Outsider stories can be contrasted with ‘stock’ stories, the latter arising from the culture and experiences of those occupying positions of power or dominance within the legal system – the ‘dominant discourse’ – while the former fall outside these parameters (for further definitions and consideration see Bryan, 1997, at pp1360-1; Sarmas, 1994, at p702). We can do this by reading and discussing articles looking at specific cases and also by taking well known or contemporary cases which have attracted media attention. These have included the Louise Woodward ‘Boston babysitter’ case, Scott Peterson (convicted of murdering his pregnant wife in California) and Colin Stagg, the man acquitted of murdering Rachel Nickell on Wimbledon Common in 1992.

In the seminar which looks in particular at ‘outsider’ stories we ask our students to prepare by reading an article on tactical choices open to advocates in cases where their client is from an ethnic minority (Armour, 1995). We also give the students a choice of other reading, mainly involving cases with possible sexual harassment and domestic violence issues. One particularly productive thread which students are encouraged to follow involves story analysis of an Australian case from a variety of perspectives (see Sarmas, 1994 & 1998, and Heerey, 1997), but there are others (for example the trial of Margaret Hossack in Iowa in 1901: Bryan, 1997). Prior to this seminar students have been introduced to the advocacy concept of a case theory (see for example Bennett & Feldman, 1981). In a subsequent seminar we look more specifically at issues of client autonomy and the interaction of professional obligations with the formulation and choice of a theory of the case (see Uviller, 2000, and Menkel-Meadows, 2000 & 2001).

In the ‘outsider’ story seminar for 2008-09 we asked students to consider the impact, actual and potential, of outsider stories in the case of Karen Matthews and Michael Donovan, who were convicted in December 2008 of the abduction and wrongful imprisonment of Karen’s daughter, Shannon, in February-March 2008 (for a timeline on the Matthews case and other links see the BBC’s Shannon Matthews timeline.

Further reading

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• Anderson, Schum & Twining (2005) Analysis of evidence Cambridge
• Armour J (1995) ‘Stereotypes and prejudice: helping legal decision makers break the prejudice habit’ California Law Review 83:733
• Bennett W & Feldman M (1981) Reconstructing reality in the courtroom: justice and judgement in American culture Rutgers University Press
• Beratlis G et al (2006) We the jury: deciding the Scott Pearson case Phoenix Books
• Bryan P (1997) ‘Stories in fiction and in fact: Susan Glaspell’s ‘A jury of her peers’ and the 1901 murder trial of Margaret Hossack’ Stanford Law Review 49:1293
• Conley J & O’Barr W (1998) Just words: law, language and power Springer
• Cotterill J (2003) Language and power in court Palgrave Macmillan
• Cunningham C (1989) ‘A tale of two clients: thinking about law as language’ Michigan Law Review 87:2459
• Heerey P (1997) ‘Truth, lies and stereotype: stories of Mary and Louis’ Newcastle Law Review 1:1
• Lubet S (1994) ‘Ethics and theory choice in advocacy education’ Journal of Legal Education 44:81
• Lubet S (2001) ‘Story framing’ Temple Law Review 74:59
• Menkel-Meadow C (2000) ‘Telling stories in school: using case studies and stories to teach legal ethics’ Fordham Law Review 69:787
• Menkel-Meadow C (2001) ‘Can they do that? Legal ethics in popular culture: of characters and acts’ UCLA Law Review 48:1305
• Miller B (1995) ‘Give them back their lives: recognizing client narrative in case theory’ Michigan Law Review 93:485
• Miller B (2002) ‘Teaching case theory’ Clinical Law Review 293
• O’Barr W (1982) Linguistic evidence: language, power and strategy in the courtroom Chicago Series in Law and Society
• Ohlbaum E (1993) ‘Basic instinct: case theory and courtroom performance’ Temple Law Review 66:1
• Pennington & Hastie (1991) ‘A cognitive model of juror decision making: the story model’ Cardozo Law Review 13:519
• Sarmas L (1994) ‘Storytelling and the law: a case study of Louth v Diprose’ Melbourne University Law Review 19:701-728
• Sarmas L (1998) ‘A response to Justice Peter Heerey’ Newcastle Law Review 3:82
• Uviller H (2000) ‘Calling the shots: the allocation of choice between the accused and counsel in the defense of a criminal case’ Rutgers Law Review 52:719

Emma Whewell (University of the West of England) reports:

Robert and Marcus argued that much undergraduate and vocational legal education focuses on substantive and adjectival learning of the law or legal skills, and that only some students have an opportunity to develop attitudes and values in some optional subjects.
 
In response to this, and with a particular focus on criminal trial strategy and the ethical questions raised, Marcus and Robert ask their LLM students to look at the theories underpinning advocacy and its practice, the role of ‘persuasion’ and the need to identify the perspectives of the client, the lawyer, the decision maker and the ‘outsider’ (defined by Robert and Marcus as someone on the periphery of social norms apart from the mainstream) in order to see the client as a three dimensional person. ‘Outsider stories’ are widely explored, with students reading and discussing articles relating to specific cases that are often well known or contemporary cases that have attracted media attention.
 
One such case is Shannon Matthews, the nine year old girl who disappeared on 19 February 2008 and was discovered alive on 14 March 2008 in the house of Michael Donovan, the 40 year old uncle of her 22 year old stepfather, Craig Meehan. Robert and Marcus asked delegates to consider Christopher Booker’s The seven basic plots (2004) – Overcoming the Monster, Rags to Riches, The Quest, Voyage and Return, Comedy, Tragedy, and Rebirth – and to decide how they would describe Shannon’s story, the story of her mother, Karen, and the story of her abductor, Michael. The audience responded enthusiastically, and Robert and Marcus were able to show how the media focused on the size of the families involved and the difficulty that arises when a stereotype breaks down and no one wants to know about another.
 
Questions from the floor tended to focus on ethical issues, including the judgment that is needed on the part of the lawyer to identify the ‘true voice’ of the ‘outsider’, the role of ‘war stories’ versus ‘obsession with the client’, and the need for students to read widely to reduce the risk that they may be manipulated by stories that obscure the truth.

About the presenters

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Robert McPeake and Marcus Soanes are both principal lecturers at the City Law School. Both are barristers and have developed and delivered the Bar Vocational Course and a criminal litigation LLM for a number of years.
 
Robert was on the organising committee for the 2007 Conference on Applied Legal Storytelling, an international interdisciplinary symposium of practitioners and academics, and is the editor of the Advocacy manual (OUP).
 
Marcus has trained Wiltshire and Thames Valley police forces in witness familiarisation and is the editor of the Conference skills manual (OUP).

Last Modified: 9 July 2010