Let me tell you what I wish I’d known
When I was young and dreamed of glory
You have no control
Who lives, who dies, who tells, your story.
Lin-Manuel Miranda, “Who Tells Your Story”
Late last week, two women confronted U.S. Senator Jeff Flake as he was entering an elevator when the Senate was considering how to proceed on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. These fearless women, Ana Maria Archila and Maria Gallagher, both survivors of sexual assault themselves, confronted Flake and asked him how, by effectively ignoring the testimony of Dr. Christine Blasey Ford, he could silence the stories of countless victims of sexual assault who heard in Dr. Ford someone who told a credible story, one that was all too familiar to them. Their passionate plea seemed to have worked, at least for the time being, and convinced Flake to pressure the Senate to agree to re-open the FBI investigation into the allegations against Kavanaugh. This was, perhaps, the most powerful and effective “elevator pitch” in the history of elevator pitches!
Senator Flake is no stranger to these sorts of confrontations. Last year, as Congress was in the midst of passing a massive tax cut that would have ramifications on health care throughout the United States, he was approached while on a plane by activist Ady Barkan, who works with the same organization as Ms. Archila, the Center for Popular Democracy. Barkan, who is, himself, stricken by ALS, or Lou Gehrig’s Disease, asked Flake to consider the effects of Congress’s action on the lives of millions of Americans, including his own. What Barkan, Archila and Gallagher were able to do was tell their personal stories to an individual in power, persuasively, personally, and with great and unbridled passion.
I do not know if elected officials have faced these sorts of interactions in the past. It is safe to assume they have. President Lincoln was known to receive visitors at the White House from people looking for patronage jobs or mothers asking about their sons who were off at war. But never before have we had the ability to broadcast these interactions, practically in real time, and spread them, virally, through social media. And it is this ability that is re-aligning power, placing new tools at the disposal of lay advocates and professional advocates alike. It is what has helped to shape the discourse and allow people to not just tell their stories, but also to pass those stories along, instantly, and throughout the world.
The ability to tell stories, to bind people together, and to help them imagine a better future and the steps necessary to bring that future to fruition is what Yuval Noah Harari calls “mythical glue.” For Harari, this ability sets us apart from other species; indeed, it’s what makes us human. For the late Robert Cover, storytelling and narrative shape the law and even society itself. Now that we have the ability to connect over these stories like never before in human history, we also have the power to influence society by telling powerful stories in unfiltered, unmediated ways.
Just as the law, and, in turn, society, are shaped by stories, so, too, is the legal profession founded on storytelling. Indeed, lawyers tell stories all the time: to juries, to judges in their briefs and in court, sometimes even to the press. Storytelling is an essential part of lawyering, and judges are susceptible to effective stories. A poorly told story, one that has gaps, or does not resonate, is not an effective form of advocacy. As the Supreme Court found roughly twenty years ago in the case Old Chief v. United States:
A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.
Lawyers, as advocates schooled in the arts of persuasion, have long told stories, but, traditionally, they have been the masters of their clients’ stories, sometimes portraying their clients in ways that the lawyers thought judges or juries might want to hear, too often describing clients as victims rather than individuals with agency, as masters of their own lives and destinies. Legal scholarship, including Critical Race Theory and Poverty Law Theory, has embraced the notion that clients should not only control and shape their stories, but should be invited to tell them as well.
Law students too can master their own stories. In a recent press conference in Washington, DC, organized by students of Yale Law School to protest Judge Kavanaugh’s nomination, students found their own voices, and spoke, powerfully, about what a Supreme Court with Kavanaugh as the swing vote would mean for them, their families, and millions of Americans.
Today, a lawyer does not have to control her client’s story, or the means through which it is told. Advocates and clients have new tools at their disposal to shape and spread their own stories, but can also be the ones telling them. Lawyers should step aside and work with clients to help them tell their own stories, their truth, in powerful and persuasive ways.
As law professors, we should look to maximize opportunities to introduce client voice and student experience directly into the pedagogy, through flipped classrooms and other methodologies—like project-based initiatives and clinical teaching—that place students and clients at the center of the educational experience. As part of that education, students should also experiment with new tools of communication that facilitate disintermediation: that powerful phenomenon that allows the clients to speak directly to each other, to those in the halls of power and authority, to those in the broader community who might be allies, and even to adversaries. In reality, though, our students, digital natives, are probably better at the use of these tools than their professors and have a lot to teach us about their effective use in advocacy campaigns, as the students from Marjory Stoneman Douglas High School and many young people across the country are proving. The importance of these new means of communication in contemporary times cannot be overstated. Indeed, when the President of the United States can now send a text message to every American with a cell phone, the tools of communication have never been more powerful, and the stakes, perhaps, never higher.
Ensuring law students understand effective storytelling in legal advocacy should always be at the core of a legal education, whether explicitly or implicitly. (I prefer making it explicit.) What is more, placing students in positions where they can begin to experiment and work within the new media landscape, to develop competencies in these areas and empower clients to tell their own stories, should also be an essential component of legal education today and tomorrow.
In a recent piece in the Southern California Interdisciplinary Law Journal I explore some of these issues and the role of new media tools in helping to decentralize and democratize storytelling in the law. Please read it here. Feedback always welcome.
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Best Practices for Legal Education 