THL-LOGO


Braiding the Strands of Narrative, Critical Reflection,and Critical Theory: What the Best Practitioners Do

What makes a legal narrative effective, successful, persuasive? We have written elsewhere about the importance of engaging in the practice of critical reflection; and intentionally using narrative and its tools as essential to effective lawyering. What our work continues to seek to clarify, though, is how best those practices guide lawyers on the content of their narratives. How do theories of anti-subordination and agency, for example, or values of equality and justice best become integrated into a narrative? How do the tools of narrative theory and critical reflection guide lawyers on how to craft normative legal narratives? We consider this question in the following essay.

Narrative is a tool for gathering, organizing, analyzing, understanding, and conveying information, solving problems, and seeking to persuade. Narrative construction requires understanding and working with (or around) embedded norms, and persuasive narratives depend on filtering information through a normative lens. But the theory of narrative construction does not direct the narrative constructor as to what norms to include or through which lens to filter information.

The same is true of critical reflection. It teaches us to review, examine, and critique our narrative construction to evaluate whether it is representative of the client’s situation and goals, but it does not provide the lens or perspective for the reflection that would guide the surfacing or challenging of embedded assumptions. As with narrative, it is void of normative direction.

Of course, lawyering itself is heavily normative, so clearly legal narratives are normative. But if the tools of narrative construction and critical reflection do not guide that normative content, what does?

We suggest that effective lawyering is guided by professionalism, including striving to do justice, client-centeredness, and critical theory (all of which we call “normative theory”). And we view the components of narrative theory, critical reflection, and normative theory as strands braided intentionally together into a unified double-helix spiral of effective lawyering. Picture a shape like the one at the start of the article. We imagine the two parallel strands that create the double helix as narrative theory and critical reflection. They form the contour of the representation, while the internal strands that braid the whole thing together are the normative theories that drive the content of the lawyering.  Altogether, we imagine a new version of the theory-[driven] practice spiral.[1]

Narrative Strand

The first strand of the braided spiral is narrative. Lawyers use narrative every day on behalf of their clients: to listen effectively in an interview, to construct a closing argument, to counsel a client, and to draft a contract. To use narrative intentionally requires an understanding of narrative components and construction to further a client’s goals. Narrative theory tells us that a “story” is what happened, the events that occurred.[2] And “narrative” is “how the story is transmitted.”[3] Jerome Bruner describes the construction and conveying of narratives (often called storytelling) as “so instinctive, so intuitive, as to render an explanation of how we do it close to impossible: We stumble when we try to explain, to ourselves or to some dubious other, what makes something a story rather than, say, an argument or a recipe.”[4] And yet, if we are to be effective lawyers, intentionally utilizing narrative construction to advocate or problem-solve on behalf of clients, we must be able to articulate and practice the process of narrative construction.

In Lawyers, Clients & Narrative, we identify and describe six elements of narrative: character (including traits); events (including setting and timeline); causation; normalization; master plot; and closure. The first two elements—character and events—are foundational to the narrative.[5] Characters are “human-like . . . with agency, motivations, emotions, and beliefs.”[6] They cause “events” to happen, and events are the action or plot of the narrative.[7]

The next four elements—causation, normalization, master plot and closure—further the narrative’s rhetorical, persuasion, and communication goals.[8] In order to be believable, compelling, and relatable, a narrative must explain the cause and effect of events or characters’ motivations, for example. It must be internally consistent from beginning to end and externally consistent with how the world works (normalization). It must provide moral or value-laden wind that propels the narrative, containing stories consistent with values, fears, and wishes that resonate with and move the audience (master plots). And, finally, the narrative must lead to closure, where the character seeks and finds resolution to a problem that disrupted the character’s normal life or status quo.[9]

Lawyers, along with clients, provide content to each of these distinct and identifiable elements through choices made—consciously or not—during the course of narrative construction and revision. Because all stories have these elements, when lawyers construct narratives with their clients, they need to make intentional choices about how to construct each element. Which characters will be included? Which events? In what order? What master plots will they focus on and which will they need to anticipate from others and argue against?

Narrative theory leads to an understanding that we, as lawyers with clients, are constructors of narratives, and, as such, we need to make intentional choices about that construction. In order to figure out what narrative to tell and how to tell it, the lawyer with her client weighs three substantive factors, the same factors that make up the theory of the case—the law, the facts and the client’s goals.  In addition, of course, the lawyer with her client considers contextual factors, such as the audience, the forum, availability of resources, time constraints, personality of the client, and potential supporting or detracting characters in the narrative.

            We are not suggesting that lawyers do not already use narrative elements to construct their stories. On the contrary: this is how stories are constructed, by lawyers and nonlawyers alike. All narratives contain these elements. Being guided by narrative theory, then, simply means harnessing what we are already doing in a systematic and intentional way. If, as we are listening to our client, something does not make sense, or we find ourselves wondering about the absence or presence of a particular character, or we imagine how we might feel in a similar situation, a narrative approach suggests that we recognize those reactions as important clues to help guide our ongoing pursuit of the client’s narrative; and that we use these clues to work with the client to construct a narrative that will engage the decisionmaker’s curiosity and compassion without triggering his disbelief or dismissal.

It is not news to suggest that lawyers and clients create narratives in the context of addressing legal issues. Let’s pay attention to what that means, though. Each one of the narratives consists of distinct and identifiable elements; and each one of these elements is the product of choices made—consciously or not—by the narrative’s constructors. Thus, when we use narrative intentionally, we become better practitioners.

Critical Reflection

Which brings us to the second strand in our braided spiral: critical reflection. We use the term “critical reflection” to describe the “method that guides our extraction of theory from practice, and the application of practice to theory.”[10] Critical reflection means asking questions and looking for answers, specifically, but not exclusively, in relation to power. By asking the “reporter” questions of Who, What, Where, When, Why, How, we surface assumptions we may hold about ourselves, our clients, our colleagues, etc. When we engage in that questioning routinely and regularly, we begin to see patterns and extract theories from the specific practices we engage in. Thus, our practical lawyering is both theory-driven and theory-building.

Through critical reflection, “the lawyer self-consciously situates herself within the particular context in which she is operating. Specifically, she recognizes that she, as a lawyer, is someone with (relative) power in the legal system.”[11] And by interrogating the context of a given situation, the lawyer is also able to situate her own power relative to the “stock” characters involved in the legal system—for example, the judges, the clerks, the bailiffs, the jurors, the defendants, the plaintiffs, the prosecutors, the defense attorneys, government bureaucrats, legislators, media, and members of the public. Moreover, she is able to take that contextual awareness of her ability—or lack of ability—to move freely among these characters into the specific set of facts and concerns presented by her client. In so doing, she can more accurately predict success or failure of particular strategies, ideas, theories, and, therefore, more effectively counsel and represent her client.

As she is situating herself and appraising the context, critical reflection helps her surface what we have come to call her default “goggles.” These goggles are her reflexive critical worldview, through which she filters information and constructs narratives. Critical reflection then provides the opportunity for her to change her goggles to make room for other intentional choices about perspectives and other worldviews to aid her narrative construction.

Narrative theory and critical reflection reinforce each other in a double-helix spiral. They operate parallel to one another, bound together by the normative theory strands described in the next section. Where narrative theory describes the surface elements of a story—the character, the events, the causal connection, the normalization, the master plot, and the closure— critical reflection interrogates each of those elements to plumb its depths.  

Consider the task of identifying potential witnesses for your client’s case. The narrative element of character would guide you to gather information about and from any significant people in your client’s life. Your client tells you to talk to members of his family, a couple of his employees, and another two or three people. Great—there’s your list. But wait— critical reflection guides us to ask WHY he has identified these people. His family, his employees, okay those make sense—but what about the other two or three people? Who are they? Why has he identified them as significant? Does understanding more about their connection to him lead to greater insight into the case, and/or other potential witnesses?

So, on a practical, specific level, interrogating this client’s choice to identify a particular person as significant might lead to concrete action and results specific to the case. As we continue to practice asking “Why” and the other questions, though, we might come to learn something about the kinds of people our clients identify as “significant.” We might come to understand in a deeper way the different reasons that someone might identify a particular character that way. And based on this extraction of theory from practice, we might adapt our interview topics, questions, and language accordingly. 

Normative Theory

The third strand in the braided spiral is normative theories. Narrative theory identifies choices that a storyteller makes about how to infuse the structural elements of narrative with content. The practice of critical reflection invites us to ask “why,” and to interrogate “what is” by using, among other tools, the narrative elements. But neither critical reflection nor narrative theory tells us HOW to make those choices: they identify and analyze the elements of a story, but they do not tell us what the story IS.

We all know—from our experience of the world and our own self-reflection—that narratives are inherently normative. Whether we mean to or not, we tell stories full of moral codes, value judgments, and/or assumptions about people and the world. And this is baked into the elemental structure of narrative. The master plot element of narrative, while not dictating which norms be included, requires the constructor to include normative-filled content. Master plots are ‘stories that we tell over and over in myriad forms and that connect vitally with our deepest values, wishes, and fears.’[12] In order for a master plot to be effective, therefore, it must be based on a particular community’s particular values, wishes, and concerns. It is up to the narrative constructor, therefore, to decide whether and what kind of master plot to include.

The client provides the most important guidance and instruction to lawyers in constructing legal narratives as the narratives are the retelling of the client’s life and contain her perspective and goals. Thus, an important normative theory that guides clinical teachers and practitioners is client-centered lawyering.[13]

Another source for the normative strand to be braided into legal narratives is professionalism and justice. Without too much thought, any student lawyer could recite that her professional obligation includes a duty to her client of confidentiality and zealous advocacy and a duty to the tribunal of candor. Those are contained in the Rules of Professional Conduct for lawyers. In addition to these basics, though, we have come to understand that being a lawyer involves some commitment to justice. Indeed, the MacCrate Report identified as a “value” that lawyers should possess “striving to promote justice, fairness and morality.”[14]

            But what does that mean in practice to construct your narrative through a lens of justice and professionalism? While similar to client-centered lawyering, using a justice lens, explicitly, requires the lawyer to think systemically about how a particular client’s story fits into our obligations to strive toward justice, fairness, and morality. When viewing our professional obligations through that lens, lawyers consider each client’s story as both unique and particular, AND part of a bigger system where power operates unequally, often without fairness and morality. With that understanding, the lawyer is better able to engage in meaningful dialogue with her client about her particular context, and also the ways in which that context is informed by the unequal operation of power. The resulting narrative is likely to be richer and more effective as a result.

Finally, normative narrative construction is guided by critical theories. By “critical theories,” in general, we mean theories of thought and argument that critique current systems, structures, and practices through various lenses that reflect relationships around power and access (or lack thereof) to it. In an early chapter of Lawyers, Clients & Narrative, we remind our readers that

narrative theory is not the only technique lawyers need to master in order to be competent client-centered professionals devoted to justice . . . When lawyers are guided by the normative theories of client-centeredness and a commitment to professionalism and justice . . . they are more likely to develop contextually rich narratives likely to achieve their clients’ complex and nuanced goals. Thus any practice of narrative theory must be accompanied by . . . normative theories and practices.[15]

As narrative theory guides us, human beings constantly seek to “normalize” the stories of those around us. We all pass stories through our own pre-existing screen of “knowledge” about how people act. Because critical theory teaches us that the stories of those outside the dominant discourse often conflict with that pre-existing “knowledge,” a tension arises between what the insiders “know” about the outsiders and what the outsiders’ stories are describing. Confronted with this tension, insiders often choose not to question their own version of reality (what they “know” is “true”), but they choose instead to recast the outsiders’ story into terms and language that make it consistent with the insiders’ understanding of reality.

In order to be effective client-centered lawyers, we need to be consciously and vigilantly aware of what we bring to our representation of clients and what the law is presenting as expected norms, and seek guidance from other sources of perspective outside of ourselves. We need to attend to the unstated values that underlie legal norms and rules, as well as our own personal norms.

We need to make explicit to ourselves the lenses we use to see the world, and how those lenses affect how we see our clients. If we don’t engage in critical reflection, we risk letting our own values and judgment guide our lawyering, and we fail to recognize our own reactions to a client’s story as just that: our own reactions. Through critical reflection we can attend to the need to braid in client-centered lawyering, justice and professionalism, and critical theory to better our narrative construction with our clients.

The Whole Braided Spiral

So here is the whole braided spiral: Critical reflection and narrative theory work together to guide us to ask questions and broaden our perspectives in gathering information and constructing cases and projects. By intentionally adding in the strand of normative theory, made up of client-centeredness, justice and professionalism, and critical theory, we create a spiral of lawyering focused on the client, aware of power dynamics and attentive to structural forces, designed to achieve client’s goals, consistent with making the world a more just place.

Braiding narrative, critical reflection, and normative theory is how we suggest lawyers with their clients create normative narratives that further their clients’ goals, and strive toward justice. This description of the braided, double-helix spiral reflects our understanding of what good lawyers already DO, not what they could or should do. Rather than a prescription, therefore, these thoughts can better be described as our observations—on an increasingly micro level—of the practice of effective lawyering. We endeavor always to use what we observe about the practice of law as tools to improve our theories of pedagogy and lawyering.

Carolyn Grose

carolyn.grose@mitchellhamline.edu

A national leader in pedagogy and narrative theory, Carolyn Grose was a tenured professor at William Mitchell College of Law before becoming a member of Mitchell Hamline’s founding faculty. She has developed and taught courses in Family Law, Trusts & Estates, Critical Theory, Trial Skills & Appellate Advocacy. Her most recent publication is Lawyers, Clients & Narrative (Carolina Academic Press 2017).



[1] See, generally, Phyllis Goldfarb, A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education, 75 Minn. L. Rev. 1599 (1991).

[2] Grose and Johnson, Lawyers, Clients & Narrative (Carolina Academic Press 2017) at 4.

[3] Grose and Johnson at 2.

[4] Id. at 27 (citing Jerome Bruner, Making Stories: Law, Literature, Life 34 (2003)).

[5] Id. at 5.

[6] Id.

[7] Id.

[8] Id. at 14.

[9] Id. at 14–20.

[10] Id. at 37.

[11] Id.

[12]Grose and Johnson, supra note 12 at 17.

[13] Id. at 30–36.

[14] American Bar Association Section Of Legal Education And Admissions To The Bar, Legal Education  And Professional Development - An Educational Continuum (Report of the Task Force on Law Schools and the Profession: Narrowing the Gap) (1992) (commonly known as the “MacCrate Report”).

 

16 Grose and Johnson, supra note 12 at 30.

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