The University of Texas at Austin

Law in Popular Culture collection

Legal Studies Forum
Volume 23, Number Four (1999)
reprinted by permission Legal Studies Forum

NARRATIVE AND THE APPELLATE OPINION

DAVID RAY PAPKE* and KATHLEEN H. MCMANUS**

I. INTRODUCTION

     In bringing critical thought to bear on the appellate opinion, we see no reason to be grumpy about the matter. As shocking as it might seem to some, we actually like appellate opinions. We enjoy reading them, and we think they are excellent cultural artifacts for teaching law and especially for achieving an active engagement with law.
     If there is a problem with the way appellate opinions are used in contemporary classrooms, it may be that they are insufficiently appreciated and utilized. Law teachers assign them all the time. Students have to read them all the time. But legal education takes far too little from appellate opinions. When the two of us look at appellate opinions, we see absolutely packed jewelry cases. Too many legal educators and students, we fear, look into the same cases but see only one kind of bauble. 
     In particular, it seems to us that many readers of appellate opinions do not understand, look for, and extract those opinions’ narratives. By “narrative,” we refer not to literary narratives. Both of us love literature and strongly endorse the law and literature movement that has so enriched legal studies in recent years, but we do not think the narrative components of appellate opinions are comparable to novels, novellas, or even short stories. While appellate opinions have a narrative voice, a notion to which we will return, the narratives of the appellate opinion are more like the short, simple stories we tell one another in everyday life. 
     Let us define narrative as a story of events arranged in a time sequence and offering some sort of meaning. The meaning can be explicit, but more frequently it is implicit. Narrative understood in this way is really all around us, and, in the words of communications scholar Walter Fisher, human beings can be understood as “homo narrans.”1 This is a play of course on other conventional understandings of the essential nature of human beings, in particular “homo sapiens”—the label suggesting we are a thinking, reasoning species. Fisher’s point is 

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that while we reason, we are just as likely to tell stories and thereby make sense of our world by narrating it.
     Our narratives include everything from the autobiographical snippets we share with friends in daily conversation to the grand myths that place us in history and in the cosmos. We even dream in narrative form, although we sometimes have difficulty getting to the end of the stories we are telling ourselves in our sleep. Jerome Brunner sees these patterns of narrative as evidence of our human “readiness . . . to organize experience into narrative form, into plot structures, and the rest.”2 Narrative orders, deepens, and enhances both memory and meaning,3 and narrative surfaces in almost all human communication. 
     In the pages that follow we develop further our understanding of narrative by contrasting it with analytic argument. We then locate the places in the appellate opinion that are narratival, discuss the appellate opinion’s narrative voice, and explore the ramifications of appellate opinions viewed from a narrative perspective. As our comments have already implied, we believe narrative appreciation brings the appellate opinion to life and contributes to a critical understanding of law.

II.NARRATIVE AND ANALYTIC ARGUMENT 

     Psychologists, sociologists, and communications experts have suggested that human beings process information in two ways: analytically and narratively.4 While men and women in the law are more consciously aware of analytic argument, legal discourse also takes the form of narrative. The differences between analytic argument and narrative appear quite striking. Arguments convince us because of their “truth.”5 Narratives convince us because of their “likeliness.”6 An argument’s truth arises out of reasoning based in logic. A narrative’s likeliness arises out of reasoning based upon intuitive knowledge of how things “really happen in the world.” An argument’s credibility rests upon the authority of a norm abstracted from life. A narrative’s credibility rests upon the authority of a situated norm that is rooted in the audience’s own knowledge of life. Argument and narrative use 

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facts in different ways. While argument “deconstructs” experience, narrative attempts to “reconstruct” it. 
     Consider the way a lawyer marshals evidence for an argument. The lawyer maps out abstract propositions of the law and then breaks up experience into isolated segments that fit the selected abstract propositions. Thus, as Graham Strong notes, argument “slices and dices the mass of available information, selects individual pieces of information for special attention, sorts them by issue, and, in its complete form, links them inferentially to factual propositions of consequence to the case.”7
     Now consider how a lawyer schooled in argument might tell a story to a client, a jury, or a judge. The lawyer’s narratives will differ in “sound” and in “feel” from the lawyer’s analytic arguments. Narrative sequence treats narrative facts as they are found in life, embedding them “in an information-rich, particularized context.”8 A narrative’s “concrete sensory details are linked not with abstract propositions, but with one another in natural associational clusters.”9
     Facts linked in these “associational clusters” resonate with readers because they are familiar and reflect the reader’s world—a situated world of cultural norms, values, and conventions. The reader interprets and tests the narrative’s authenticity, credibility, and moral weight against his or her sociocultural world.10 Narrative prompts the reader’s imagination, asking the reader to draw upon personal experience and conventional expectation when reading and interpreting the text. In this way writer and reader collaborate in creating the text’s meaning.11
     Psychologist Jerome Bruner names this phenomena “folk psychol-ogy,” and defines it as “a set of more or less connected, more or less normative descriptions about how human beings ‘tick.’”12 According to Bruner, folk psychology allows us to know “what our own and others minds are like, what one can expect situated action to be like.”13 Bruner’s folk psychology is “a system by which people organize their experience in, knowledge about, and transactions with the social 

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world.”14 This “folk” way of knowing the world is learned early and is part of what we learn by way of communal life.15
     Bruner’s folk psychology rests on an understanding of cognitive schemata, prototypes, and scripts. Although these cognitive components have distinct features, they function in overlapping and complementing ways to produce meaning. When we understand how schemata, prototypes, and scripts operate, we can better appreciate the power of narrative reasoning .
     Professor Albert Moore describes a schema as “a category in the mind which contains information about a particular subject.”16 These epistemological categories help us to process information in a number of ways. First, they provide a means for selecting information upon which to focus.17 Second, schemata help us make distinctions and sort information into categories. Third, cognitive schemata help us place information within a time perspective, allowing us to “make meaning of the present, remember and reconstruct the past, and predict the future.”18
     Finally, schemata build inferences. For example, consider this story: “John went to a party. The next morning he woke up with a head-ache.”19 What information is missing here? Perhaps none. Although the story does not directly disclose the cause of the headache, the storyteller does provide that information by inference: that being “John drank too much at the party.” This inference is based on the cultural knowledge that “folks who drink too much at night will wake up in the morning with a headache.” 
     The cultural knowledge about people who drink too much at parties serves as the premise that supports a conclusion about the cause of John’s problem. Because this premise about drinking arises out of everyday behavior, it lends legitimacy and credibility to the inference. It also allows the writer to state information indirectly, knowing that the audience will understand the intended meaning.
 

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     Prototypes anchor schemata categories because they add information about the category. Prototypes are characteristics commonly associated with a particular category, saying “how” that category is. Prototypes do have a downside. They can be distorted by bias and prejudice, becoming stereotypes. 
     Both writers and readers create meaning with prototypes. First, when a writer does not have all the information needed to tell a story, prototypes allow the writer to fill information gaps and to infer information. Second, knowing the distortions stereotypes create, critical readers examine the writer’s use of prototypes closely. In this way prototypes serve as a basis from which readers either accept—or challenge—the writer’s use of inference. 
     We said earlier that the reader judges a narrative’s “likeliness” by measuring that narrative against the reader’s knowledge of how things work in the world. Scripts are the cognitive frameworks that provide this knowledge. Addressing standard subjects, scripts sequence actions of characters within standard situations.20 Thus, scripts help us to identify appropriate content for stories and to sequence that content. Scripts also act as templates of familiar stories upon which we structure unfamiliar information for understanding.21
     Professor Richard Sherwin lays out a standard story of “a visit to a restaurant,” in a scripted sequence of scenes: “being shown a table, receiving a menu, discussing the food, ordering.”22 This script describes “what everyone does” when going to a restaurant. Its predictability of content and sequence allows the writer to use the script to infer or “fill-in” unknown facts relating to the story. 
     But when a narrative describes a life event that does not play out as “scripted,” the use of script changes . Now script acts as a normative measure by which readers recognize a deviation from the norm. This deviation attracts notice and demands explanation by the writer and requires interpretation by the reader.23 Using a script to explain apparent inconsistencies between an actor’s intentional state and behavior, the writer attempts to find a new story with “an intentional state that mitigates or at least makes comprehensible a deviation from a canonical cultural pattern.”24 Using a script as a working hypothesis, the reader judges the “likeliness” of the writer’s story, assessing the 

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conflicting information about motive and intention.25 Thus, if someone enters the restaurant and does not act in a “restaurant-like” manner, both writer and reader “search for a set of meanings that will explain such deviant behavior.”26 
     Consider a story about an incident in a restaurant at which patrons are expected to pay the waiter upon completing dinner. A person enters the restaurant, and all of the master script scenes play out in the normal sequence with all of the standard characters, standard actions, and standard events unfolding as expected. But when it comes time to pay the bill, the situation deviates from the script. Immediately after the waiter places the bill upon the table and pours the final cup of coffee, the customer picks up the bill and examines it as she sips her coffee. She reaches for her purse and appears to be searching for something. Looking up frequently, she checks to see where the waiter is. Yet she is always careful to avoid catching his eye and never attempts to call him back to the table. As soon as the waiter enters the kitchen to pick-up his next order, the customer moves quickly. She leaves the table and rushes out of the dining room without paying. 
     What meaning is there in the customer’s failure to pay? What story explains her behavior? What is the moral significance of her act? Is this an act of dishonesty? Will it be a story of sudden illness or a forgotten gift certificate left in the pocket of a coat in the car? Ultimately the power of scripts rests in their use when marking significant points in narrative and explaining and judging the moral values within the narrative. 

III. NARRATIVE IN THE APPELLATE OPINION

     Robert Ferguson seems right in casting the appellate opinion as “the most creative and generally read literary form in the law,”27 but this is not to suggest that an opinion is a single narrative. Instead, a given opinion includes narratives in many places. We want in this section to note what seem to us the most prominent and important locations.
     The most obvious narrative in an appellate opinion is the statement or restatement of facts which purports to recount the events leading to the litigation. One of us teaches an advanced law school seminar in legal writing, which studies recent U.S. Supreme Court opinions. In the first half of the course the rhetorical techniques—including tropes such as 

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metaphor, irony, and personification—are scrutinized. In the second half the course turns to narrative, and students are asked to choose an appellate opinion and to develop more fully the narrative element of the opinion. The students invariably turn to the “facts,” the part of the opinion that strikes them as narrative. 
     But to what extent are the facts in appellate opinions truly “factual”? In reality, the person who composes the “facts” for an appellate opinion makes lots of decisions—either thinkingly or unthinkingly—about what to leave in and what to take out. In addition, the pronounced “facts” are written from the perspective of the decision-maker.
     If a court is divided, one can often look to the dissent for a different narrative and different “facts.” Indeed, dissenting judges are often quite insistent that the majority does not have the facts quite right. The tendency of dissenting judges to retell the “facts” differently than the judges in the majority is beautifully illustrated by the case of DeShaney v. Winnebago County Department of Social Services.28 The DeShaney Court split with five justices joining in Chief Justice Rehnquist’s opinion, and two justices joining in Justice Brennan’s dissent. Although he joined in the Brennan dissent, Justice Blackmun also wrote his own dissent. The Rehnquist majority opinion and the Brennan dissent present very different “factual” narratives.
     The DeShaney case involved a four-year-old child who was subject to extended abuse by his father. Through his guardian, the child alleged that the State of Wisconsin had violated the child’s substantive Due Process rights because the State had failed to protect him from this abuse. Ultimately, the Court’s majority held that the State had no duty to protect the child under the Due Process Clause because the Due Process Clause “imposes no affirmative obligation on the State to provide the general public with adequate protective services.”29 The Court also held that in the case presented to them no “special relation-ship” between the child and the State obligated the State to act on the child’s behalf.30 The Court found two facts determinative: the child was not in State custody at the time of his injuries and the injuries were caused by his father.31

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     Much of the majority’s analysis revolves around the case-law and especially what it calls “the Estelle-Youngberg analysis.”32 But analysis is not all that the Rehnquist majority opinion contains. The Court supports its analysis with the following narrative of “inaction”:  
     The facts of this case are undeniably tragic. Petitioner Joshua DeShaney was born in 1979. In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney. The father shortly thereafter moved to Neenah, a city located in Winnebago County, Wisconsin, taking the infant Joshua with him. There he entered into a second marriage, which also ended in divorce.
      The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse in January 1982, when his father’s second wife complained to the police, at the time of their divorce, that he had previously “hit the boy causing marks and [was] a prime case for child abuse.” The Winnebago County Department of Social Services (DSS) interviewed the father, but he denied the accusations, and DSS did not pursue them further. In January 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions. The examining physician suspected child abuse and notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in the temporary custody of the hospital. Three days later, the county convened an ad hoc “Child Protection Team”—consisting of a pediatrician, a psychologist, a police detective, the county’s lawyer, several DSS caseworkers, and various hospital personnel—to consider Joshua’s situation. At this meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. The Team did, however, decide to recommend several measures to protect Joshua, including enrolling him in a preschool program, providing his father with certain counseling services, and encouraging his father’s girlfriend to move out of the home. Randy DeShaney entered into a voluntary agreement with DSS in which he promised to cooperate with them in accomplishing these goals.
     Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of his father. A month later, emergency room personnel called the DSS caseworker handling Joshua’s case to report that he had once again been treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the next six months, the caseworker made monthly visits to the DeShaney home, during 


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which she observed a number of suspicious injuries on Joshua’s head; she also noticed that he had not been enrolled in school, and that the girlfriend had not moved out. The caseworker dutifully recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney household was physically abusing Joshua, but she did nothing more. In November 1983, the emergency room notified DSS that Joshua had been treated once again for injuries that they believed to be caused by child abuse. On the caseworker’s next two visits to the DeShaney home, she was told that Joshua was too ill to see her. Still DSS took no action.
     In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded. Randy DeShaney was subsequently tried and convicted of child abuse.33
     In his dissenting opinion, Justice Brennan adopts language from the majority opinion to assert that the Estelle-Youngberg case-law should be broadly read to mean that “‘the State’s knowledge of [an] individual’s predicament [and] its expressions of intent to help him’ can amount to a ‘limitation . . . on his freedom to act on his own behalf’ or to obtain help from others.”34 Justice Brennan claims that the Estelle-Youngberg analysis stands for “the more generous proposition that, if a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.”35 Justice Brennan’s narrative of the “facts” rejects the majority’s story of State “inaction.” He tells a story of State actions that create a child welfare system which controlled and monopolized the welfare of a child and of State actions that demonstrate complicity in the father’s abusive acts. His narrative follows:
     Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent (DSS or Department) a duty to investigate reported instances of child abuse. While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, Wisconsin 


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law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. Even when it is the sheriff’s office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action; the only exception to this occurs when the reporter fears for the child’s immediate safety. In this way, Wisconsin law invites—indeed, directs—citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse.
     The specific facts before us bear out this view of Wisconsin’s system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action. When Randy DeShaney’s second wife told the police that he had “‘hit the boy causing marks and [was] a prime case for child abuse,’” the police referred her complaint to DSS. When, on three separate occasions, emergency room personnel noticed suspicious injuries on Joshua’s body, they went to DSS with this information. When neighbors informed the police that they had seen or heard Joshua’s father or his father’s lover beating or otherwise abusing Joshua, the police brought these reports to the attention of DSS. And when respondent Kemmeter, through these reports and through her own observations in the course of nearly 20 visits to the DeShaney home, compiled growing evidence that Joshua was being abused, that information stayed within the Department— chronicled by the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent of the social worker’s involvement in, and knowledge of, Joshua’s predicament, her reaction to the news of Joshua’s last and most devastating injuries is illuminating: “I just knew the phone would ring some day and Joshua would be dead.”)
     Even more telling than these examples is the Department’s control over the decision whether to take steps to protect a particular child from suspected abuse. While many different people contributed information and advice to this decision, it was up to the people at DSS to make the ultimate decision (subject to the approval of the local government’s corporation counsel) whether to disturb the family’s current arrangements. When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation—and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. Unfortunately for Joshua DeShaney, the buck effectively stopped with the Department.
     In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel 


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that her job was done as soon as she had reported her suspicions of child abuse to DSS. Through its child-welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin’s child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney’s violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs.
     It simply belies reality, therefore, to contend that the State “stood by and did nothing” with respect to Joshua. Through its child-protection program, the State actively intervened in Joshua’s life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger.36
     Beyond the statements or restatements of the facts, narrative also appears in the precedents relied upon by an appellate court. But isn’t the essence of any precedent its holding? Appellate opinions routinely include short narratives of the cases most central to the decision. Perhaps the point is that rules, holdings, precedents make little sense without at least a minimal contextual narrative. 
     And then, too, the narrative in either the restatement of the facts or a given precedent can always be reconfigured. Consider Judge Easterbrook of the U.S. Court of Appeals for the Seventh Circuit writing in Johnson v. Phelan, a 1995 decision on the monitoring by female prison guards of naked male inmates in their cells, the shower, and the bathroom and the argument that the monitoring constitutes cruel and unusual punishment barred by the 8th Amendment. Let’s alter the facts, Easterbrook says. “Suppose the warden decides to issue guns to the guards, a step that in the absence of an ongoing riot violates contemporary norms because weapons create risks. Prisoners may seize them and shoot the guards or each other; guards may discharge them accidentally, injuring the prisoners. The decision to issue the guns is deliberate, and everyone knows that some injuries will follow.”37 Would this violate the 8th Amendment? Obviously not, Easterbrook says, because the warden did not want to harm anyone and adopted the policy to reduce violence. The hypothetical, Easterbrook suggests, shows 

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that cross-sex monitoring with an eye to prison security cannot be considered a variety of constitutionally barred cruel and unusual punishment. In Easterbrook’s curious analogizing of the issuance of guns to cross-sex monitoring, we see a judicial alteration of the factual narrative.
    The hypothetical alteration of the facts can and does sometimes blend into a more generalized description of social life and social policy. Opinions are not sociological studies, but they do offer sketches and portrayals of social life that support the ultimate ruling. And these sketches and portrayals are often in narrative form. Here’s Judge Diggs speaking in Jefferson v. Jones, a 1979 Maryland case concerning warranty of title: “In today’s world there is no shortage of individuals willing to litigate on virtually any subject without regard to the soundness of the propositions advanced and, therefore, without regard to the possibility of success. In our affluent society some are blessed with sufficient worldly goods to finance such litigation. Others litigate at the expense of the public treasury.”38 This brief editorial about social life includes several miniature narratives. Needless to add, the narrative buried in the judge’s social commentary helps lead to his decision on the warranty of title.
    Other potential narrative sites in the appellate opinion include brief historical narratives, sketching a particular variety of legal evolution or sociopolitical developments in general, as well as miniature stories about how institutions such as the legal profession, the trial court, and the legislature are supposed to function. Even the case holding itself, the British scholar Bernard Jackson has argued, has a narrative dimension to it. He interprets both the major premise (an abstract rule) and the minor premise (the summary of facts in the case at hand) as small narratives. The resulting syllogism or holding, Jackson argues, is not “logic” as any logician might know it, but rather a matter of perceived resonance between the rule and the facts as narratives.39
     The judges who write appellate opinions are much more aware of their legal analyses than their narratives, and the few who have critically contemplated narrative are leery of it. Judge Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit, for example, warns against using “rhetoric, including reliance on emotional stories” in 

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appellate opinions.40 Narratives, in Level’s opinion, have the potential to seduce the citizenry and leave us “to guess in bewilderment what the legal point was.”41 But Judge Leval’s reservations notwithstanding, judges consciously or subconsciously realize that analysis alone does not justify a particular decision. They use narrative to bolster and develop their decisions, to complement and complete appellate decisions built on argument and analytic reasoning.

IV.THE VOICE OF THE JUDGE AND THE OPINION

     Every narrative has a voice that tells the story, the voice on which the reader relies, the voice in which the story is heard. In appellate opinions judges thinkingly or unthinkingly attempt to suppress recognizable individual voices. The names of individual judicial authors are given, but it is also customary to state that a named appellate judge has written “the opinion of the Court.” This contrasts with traditional English practice, in which each Law Lord writes an opinion and leaves it to readers to integrate the various views.42 Most American appellate judges eschew attempts to give their opinions a distinctive authorial style. Judges may take pride in what they write, and edit and revise extensively, but still strive for a voice that is impersonal and in a sense “voiceless.” The implication in the writing is that the state and the rule of law are speaking rather than the judge. 
     There are exceptions to this patterned writing and the effort to produce a voiceless legal argument. John Marshall, for example, is taken to have a distinctive voice in his efforts to “expound” the Constitution.43 The voice of Oliver Wendell Holmes is also recognizable. He is not an expounder but rather pithy, pointed, and almost snotty. “The Fourteenth Amendment,” he says in his famous Lochner dissent, “does not enact Mr. Herbert Spencer’s Social Statics.”44 In Buck v. Bell, he announces, “Three generations of imbeciles are enough.”45 James Boyd White suggests that we not overlook Justice Harlan, whose voice, White contends, is uniquely open in that it shares with readers not only 

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the grounds of a decision but also doubts and uncertainties that haunt it.46
     In more recent years Richard Posner and Harry Blackmun have created judicial voices. Posner, sitting as Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, writes his opinions in a lively, metaphorical, peculiar way47 suggesting his “voice-consciousness.” Blackmun, by contrast, increasingly spoke in an anguished, even bitter voice in his later years on the U.S. Supreme Court. Recall in this regard that he not only joined the Brennan dissent in DeShaney but also penned his own dissent. The final paragraph cries out in a voice unusual for appellate judges:
     Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, . . . “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles—so full of late of patriotic fervor and proud proclamations about “liberty and justice for all”—that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded.48
     As noted, all these judges—Marshall, Holmes, Harlan, Posner, and Blackmun—are exceptions. In their own times or with the passage of time, they developed or were thought to have developed recognizable judicial voices. Most appellate judges write opinions in a format that mutes the individual judicial voice. What are the features of voice in the standard form of appellate opinion? The voice is monologic, it tells stories without awaiting or anticipating a response. The voice speaks of and for itself and almost always declarative, that is, it conveys an implication of the inevitable. The voice is almost never one of mystery 

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or irony, fear or ambiguity. According to Robert Ferguson, who has commented extensively on the rhetorics of judicial opinions, “The one thing a judge never admits in the moment of decision is freedom of choice. .  . [The opinion] must instead appear as if forced to the inevitable conclusion by the logic of the situation and the duties of office, which together eliminate all thought of an unfettered hand.”49
     This is a voice of the state, albeit not a state in which we can all take pride. Overall, the standard formatted voice of the appellate opinion is perfectly suited for what might be seen as the ultimate master narrative of the appellate opinion: an anonymous, monologic, declarative voice that assures us that law can resolve disputes, based on previously established rules, in a way that provides for a good and ordered society.

IV.AN APPRECIATION OF NARRATIVE

     Does it make any difference that the appellate opinion contains narrative and has a narrative voice? What are the benefits of developing a narrative sensitivity in our contemplation of the appellate opinion? 
     As for law teachers, Derrick Bell has reminded us of how frequently we use narrative as part of our collective pedagogy. The use of hypotheticals is a staple of long-standing in the law school classroom, and in their examinations many law professors rely on fictional narratives to which students are to apply rules, precedents, and legal reasoning.50 
     Law students often find the appellate opinion painfully familiar but not truly accessible. Elizabeth Fajans and Mary Falk suggest that many law students suffer not from “writer’s block” but rather from “reader’s block.”51 They read appellate opinions as efficient consumers. They pluck out rules and holdings, and ignore (as taught) the textual richness. A sensitivity to narrative might better enable students to grasp not what an opinion means but rather how it means. This narrative sensitivity, then, is one avenue to greater critical conscious-ness of the appellate opinion. In Fajans and Falk’s terms, it is one way to speak back to state power. 
     Students’ narrative sense, that is, their inherent disposition to narrative, qualifies them to talk back to texts, testing the integrity of an appellate opinion even at points within their legal careers at which 

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their analytical legal skills are not yet highly developed. A student’s narrative reading can be a good place to begin discussion about the law. The use of narrative “readings” of appellate opinions develops students’ confidence, particularly in the first year when the learning curve on analytic thinking is so high. Narrative confirms the importance of facts in a discourse that focuses heavily upon abstract norms in decision-making.52 In our common law system, which invokes multiple forms of proof and persuasion,53 a study of narrative is the natural complement to the study of legal analysis and argument.
     Our colleague James Elkins claims that a narrative perspective can be transformative, providing new strategies for thinking about cases and for teaching students “how to read them.”54 Elkins asserts that narrative provides a “comprehensive” and “useful” jurisprudence upon which teachers can engage students in conversations about interpretive options, moral values, and the cultural dimensions of the law.55 As Elkins says, “[t]he only way we can be true to stories is to tell them, teach them, make use of them, ponder them, puzzle over them—and we must do this throughout legal education, in every law school classroom.”56
     The development of narrative sensitivities while in law school may have ramifications when students become lawyers and judges. Sensitivity to the narrative aspects of appellate opinions might contribute to the legal professional’s ability to hear and tell stories in other contexts. After all, as Graham Strong has argued, “[t]he story form is the lawyer’s stock-in-trade, the way the lawyer ordinarily receives factual information, and a principal way in which the lawyer conveys factual information persuasively to an audience.”57 When clients meet with their lawyers, the clients tell their stories. Lawyers then seek information from other parties, and much of this information is in story form. If the case ends up in court, the lawyer uses opening statements, evidence, examination and cross-examination of witnesses and parties, the 

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presentation of factual and opinion and closing arguments to tell a story. Successful litigators are invariably good storytellers, and scholars have underscored the relationship of storytelling and trial practice.58
     All members of the legal community—lawyers, judges, legislators—must confront the stories that the law constructs and authenticates and “accept greater responsibility for the legal realities we help to establish when we tell or accept one legal story rather than another.”59 Narrative sensitivities help the legal professional grasp law not as legal rules but rather as a “realm of possibilities.”60 Professor Sherwin observes this deeper “capacity” for localized seeing and understanding can also expand our ability to translate from one cultural context to another, perhaps cultivating more widely shared notions of individual dignity and equal justice under law.”61
     As for the appellate opinion in and of itself, we would add that it always hangs overhead in the practitioner’s sky. To be sure, most practitioners are more likely to draft and negotiate than they are to read. If a practitioner reads professionally, contracts, rules of court, and statutes are all more likely than appellate opinions to be on his or her desk. But still, the lawyer works beneath the light of the appellate opinion. It reifies the ultimate judicial proceeding that might ultimately come to pass, and a sophisticated, critical appreciation of the appellate opinion is crucial for the successful practitioner. Sensitivity to narrative would contribute to this appreciation. 
     And as for citizens in general - some of whom are lawyers, some of whom are not - an appreciation of narrative in the appellate opinion offers the possibility of truly understanding the law. We live in the most legalistic nation in the world, one which relies on law not only to resolve disputes and mete out penalties but also more broadly to make sense of the events and behavior all around us. Hence, an understanding of law, a way to conceptualize it, is crucial to critically minded citizenship.
     Law is not just the rules, but much of the citizenry fails to realize that. Through an appreciation of narrative citizens could perhaps begin to see law as an immense, complicated discourse regarding the normative nature of our society. As self-conscious interpreters and tellers of stories, citizens could become bolder about entering into the legal discourse.

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ENDNOTES

*R. Bruce Townsend Professor of Law and Professor of Liberal Arts, Indiana University School of Law, Indianapolis.

**Assistant Professor of Law and Director, Legal Writing Program, Marquette University Law School.

1.  Walter R. Fisher, HUMAN COMMUNICATION AS NARRATION: TOWARD A PHILOSOPHY OF REASON, VALUES AND ACTION 62 (1987).
2.  Jerome Bruner, ACTS OF MEANING 45 (1990).

3.  Bruner and others tell us that we do not remember information that is not structured narratively. Id. at 56. This reality, of course, is one of the big advantages of teaching law using the case law method.

4.  Graham B. Strong, The Lawyer’s Left Hand: Nonanalytical Thought in the Practice of Law, 69 U. Colo. L. Rev. 759, 782 (1998).

5.  Id.

6.  Id.

7.  Id. at 781-782.

8.  Id. at 782.

9.  Id.

10.  Bruner, supra note 2, at 50.

11.  Strong, supra note 4, at 783-85
.
12.  Bruner, supra note 2, at 35.

13.  Id.

14.  Id.

15.  Id. at 64.

16.  Albert J. Moore, Trial by Schema: Cognitive Filters in the Courtroom, 7 U.C.L.A. L. Rev. 273, 279 (1989).

17.  Id.

18.  Id. at 281.

19.  Richard K. Sherwin, Law Frames: Historical Truth and Narrative Necessity in a Criminal Case, 47 Stan. L. Rev. 39, 50 (1994) (quoting Charles W. Nuckolls, Culture and Causal Thinking: Diagnosis and Prediction in a South Indian Fishing Village, 19 Ethos 3,4 (1991)).

20.  Id. (quoting Nuckolls, at 9-11).

21.  Id. at 51.

22.  Id. at 50.

23.  Peter J. Rabinowitz, BEFORE READING: NARRATIVE CONVENTIONS AND THE POLITICS OF INTERPRETATION 77 (1987).

24.  Bruner, supra note 2, at 49-50.

25.  Moore, supra note 16, at 279.

26.  Sherwin, supra note 19, at 50 (citing Nuckolls, at 5). 

27.  Robert Ferguson, The Judicial Opinion as Literary Genre, 2 Yale J. L. & Human. 201, 201-2 (1990).

28.  489 U.S. 189 (1989).

29.  Id. at 197.

30.  Id. at 198.

31.  Id. at 201.

32.  Id. 

33.  DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S. 189, 191-93 (1989).

34.  Id. at 207 (Brennan, J. dissenting) (quoting the Rehnquist majority opinion, id. at 200).

35.  Id. at 207.

36.  Id. at 208-210.

37.  Johnson v. Phelan, 69 F.3d 144, 150 (1995).

38.  Jefferson v. Jones, 408 A.2d 1036, 1041 (1979).

39.  Bernard S. Jackson, Narrative Models in Legal Proof, 1 Int. J. Semiotics L. 225, 238 (1988). For a fuller development of Jackson’s argument, see Bernard Jackson, LAW, FACT AND NARRATIVE COHERENCE (1988).

40.  Pierre N. Leval, “Judicial Opinions as Literature,” in Peter Brooks and Paul Gewirtz (eds.), LAW’S STORIES: NARRATIVE AND RHETORIC IN THE LAW 206-210, at 208 (1996).

41.  Id.

42.  Sanford Levinson, “The Rhetoric of the Judicial Opinion,” in Brooks & Gewirtz, supra note 40, 187-205, at 188. 

43.  “[W]e must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. 316, 408 (1819).

44.  Lochner v. New York, 198 U.S. 45, 75 (1905).

45.  Buck v. Bell, 274 U.S. 200, 207 (1927).

46.  James Boyd White, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM 224 (1990).

47.  Posner’s restatements of the facts are often breezy and lively. When writing of a steelmaker’s attempt to avoid a contractual obligation to purchase scrap metal, for example, Posner blurts, “Sure enough, Metallurgiki refused to accept it.” Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1361 (7th Cir. 1985). His opinions often revive dead metaphors and are sensitive to paradox. In a risk of loss case involving a warehouse fire that destroyed pork ribs, Posner writes, “But between the moment of transfer of title by Jason’s and the moment of receipt of the warehouse receipt by Eckrich, neither party to the sale had effective control of the ribs. They were in a kind of limbo, until (to continue the Dantesque image) abruptly propelled into a hotter region.” Jason’s Foods, Inc. v. Peter Eckrich & Sons, Inc., 774 F.2d 214, 218 (7th Cir. 1985).

48.  DeShaney, 489 U.S. at 213.

49.  Ferguson, supra note 30, at 206-207.

50.  Derrick Bell, The Power of Narrative, 23 Legal Stud. F. 315, 316 (1999).

51.  Elizabeth Fajans and Mary R. Falk, Against the Tyranny of Paraphrase: Talking Back to Texts, 78 Cornell L. Rev. 163, 168 (1993).

52.  Narrative also improves students’ writing skills. Argument expands and takes on new persuasive life when complemented by narrative. 

53.  Sherwin, supra note 19, at 82.
54.  James R. Elkins, What Kind of Story is Legal Writing? 20 Legal Stud. F. 95, 100 (1996).

55.  James Boyd White develops a similar idea in Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. Chi. L. Rev. 684 (1985). 

56.  Elkins, supra note 54, at 125. For more detailed pedagogical strategies for developing narrative skills, see Linda Edwards, Convergence of Analogical and Dialectic Imagination, 20 Leg. Stud. F. 7, 47-49 (1996).

57.  Strong, supra note 4, at 780.

58.  W. Lance Bennett & Martha S. Feldman, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE (1981).

59.  Sherwin, supra note 19, at 82.

60.  David Ray Papke (ed.), NARRATIVE AND THE LEGAL DISCOURSE: A READER IN STORYTELLING AND THE LAW 5 (1991).

61.  Sherwin, supra note 19, at 82. 

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