Exhuming human remains from case law: the role of narrative research in legal education

In her paper Dawn Watkins (University of Leicester) sought both to endorse and to encourage the use of narrative research in the field of law and legal education.

The session was blogged on Digital Directions, and Dawn’s full paper appeared in the Web Journal of Current Legal Issues 2009(3) in June 2009. She presented a follow up paper, A report on the first dig, at Learning in Law Annual Conference 10.

Both Dawn’s paper and the other paper in the session, Whose ‘version’ of the facts, provided 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. Julian Webb (UKCLE) comments:

Recovering client stories and developing awareness of the different voices, and indeed ‘register’ of those voices (insider/outside; powerful/powerless etc) are important objectives that have been underplayed in much UK legal education and the academic literature. I’m struck by the contrast with the mass of work that has been produced in the US since the late 1980s, particularly on empathy and storytelling.
 
What’s more, clinical, feminist and critical race perspectives on US law schools all point to another genie that a focus on outsider narratives has, sooner or later, to let out of the bottle – the extent to which law school fails to acknowledge the outsider narratives that are present within its own territory – narratives of class, race, sexuality and gender that still, to varying degrees, are silenced by dominant discourses and practices.

This paper argues that by adopting certain teaching methods we have failed to acknowledge or highlight to our students the fundamental significance of human actors as contributors to the outcome of legal proceedings. In doing so we have encouraged the burial of humankind in legal education, albeit in a figurative sense, and, suffocated beneath our emphasis upon finding the correct reading of a case or the ratio of a judgment, lie the remains of parties, legal representatives, judges and juries. This paper proposes narrative inquiry or research as a means of exhuming and rediscovering these hidden human remains.

Narrative has become increasingly prominent during the last two decades in certain areas of inquiry and research, most notably in the fields of education, psychology, sociology and anthropology. More recently, narrative inquiry has also been acknowledged as an appropriate methodology for research in law and medicine.

Narrative research or inquiry may be defined broadly as “any study that uses or analyses narrative materials”. Similarly, the materials that provide the basis of the research may be drawn from a wide variety of sources, such as autobiographies, diaries, notes taken by interviewers and audio recordings of interviews. Case law, particularly judicial opinions, and courtroom discourse provide a rich source of investigation for narrative research. Amsterdam & Bruner (Minding the law, Harvard University Press, 2002), for example, focus on two specific judicial opinions from the cases of Prigg v Pennsylvania 10 L.Ed. 1060 (1842) and Freeman v Pitts 118 L.Ed.2d 108 in order to learn what may be discovered by “reading these judicial opinions as stories”.

By considering first the human aspects of a case as a means to considering the complex issues it raises we restore the human actors or characters involved in that case to their rightful status ‘above ground’. Furthermore, by giving close consideration to the part that each has played in the story of the case, we breathe back life into these human remains.

This paper proposes that through this process of not only exhuming the human remains from case law but also reviving them, and by encouraging our students to do so, we will take an important intermediary step towards cultivating humanity in the realm of legal education.

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

Although Dawn had no slides or other visual aides to assist her, she captivated her audience with the use of her voice and a graphically told ‘story’ about boundary disputers, funeral directors, probate disputers, estoppel claimers, legal representatives and judges marching into a freshly dug pit and being buried by academics driving JCB diggers who then demanded that their students, occupying seats and desks on top of the burial mound, should “find the ratio”!
 
She argued that certain teaching methods fail to highlight the significance of human actors as contributors to the outcome of legal proceedings, and that narrative enquiry or research can exhume and breathe new life into these human remains, engage students more fully in the subject and encourage both active student learning and a human centred approach to legal education.
 
Dawn then described a research project at Leicester aimed particularly at final year students studying equity and trusts, although she believes the approach could also be used to revive student imaginations in subjects such as tax, often viewed as complex yet ‘dull’! It is hoped that 30 student volunteers will participate in the project, reading a case and then writing a story or narrative account of it from the perspective of one of the parties (or characters). She will then assess the stories and interview the students in small focus groups to elicit their own narrative accounts of participating in the study.
 
During questions participants seemed genuinely optimistic about the project, although perhaps a little cautious about the precise details of the proposed assessment. One delegate wondered whether there was a danger of blurring the distinction between law and facts, and another suggested that we take another look at the judgments of Lord Denning for inspiration!

Tracey Varnava (UKCLE) comments:

Dawn’s story telling is second to none – the picture she conjured of the human actors in law cases being literally buried by academia is still vivid in my mind!

About Dawn

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Dawn Watkins is a lecturer in the School of Law at Leicester, where she teaches equity and trusts and family law. She has taught on the Legal Practice Course at Nottingham Law School and also worked as an associate lecturer for the Open University.
 
Dawn’s research interests are law and the humanities (especially art law, law and literature), legal history and family law.

Last Modified: 9 July 2010