Wednesday, June 24, 2009

Help Me Construct a Stack for Narrative, or Story-Telling, for Litigation and Similar Situations

I have long delayed developing a "stack" (in my MarshalPlan software) that can support the development of narratives, or stories, for litigation -- or, at a minimum, remind budding trial lawyers and others of the importance of story-telling in litigation and trials (and in investigation?). This is partly because it is unclear -- as least to me -- how narratives, or stories, relate to the search for the truth about facts. (MarshalPlan began as a system to support investigation and I have implicitly assumed that the purpose of good investigation is to produce accurate judgments about factual questions.) However, I can no longer postpone the important chore of supporting the formation of productive stories and narratives. So I have begun developing a stack called "Narrative."

I have put the following blurb, or explanation, on the "Narrative" stack:

Narrative has an uneasy and complicated relationship to the search for truth about fact and law. (I wonder if Aristotle might not be the best guide on this.)

This stack invites you to construct one or more narratives for a case. A narrative normally involves actors. A narrative often involves a theme that runs through all or many events in the narrative. A narrative may have more than one theme. A theme may involve actors' motivations and their character.

A narrative involves settings in which events happen. These settings include an initial setting, intermediate settings, and a concluding setting, or denouement. A narrative involves a temporal series of events (including actions) in a series of settings. An effective narrative also involves a conjecture and an argument about how some or all of the temporal events in a case are connected with each other. But a narrative does not necessarily recount possible events in chronological order. Nonetheless, effective narratives rest on time lines and scenarios; narratives bereft of such temporal foundations are incoherent and unintelligible. (The purpose of a narrative in a legal context is to persuade the audience of the truth of factual hypotheses, and not merely to entertain.)

A narrative that seek to persuade an audience of the truth of the story recounted is effective only to the extent that the audience believes that the story advanced by the narrator is adequately supported by the available evidence and probable facts. This is so unless the narrator is able to confuse the audience about the apparent evidence and the apparent facts or induce the audience to ignore what it believes to be the evidence and the facts. But the willingness of an audience to accept the narrator's story may be affected by the apparent logical force of the inferences generated by the available evidence.

A narrative ordinarily involves the use of drama or other devices to engage the emotion, attention, and interest of the audience. A narrative may be designed -- and it very often is designed -- to serve partisan purposes rather than or other than the discovery of the truth about factual questions. But narrative -- whether wittingly or unwittingly -- can promote the search for the truth. This is because the drawing of good inferences by an audience in part requires that (i) the audience pay attention to the issues and the questions before it and (ii) the audience care how those issues and questions are answered. Narrative engages the emotion of the audience and it thereby engages the attention of the audience and the audience's appreciation of the importance of arriving at the right answers.

By the way: analysis of narrative can also help a person, party, or a trier of fact to assess the strengths and weaknesses of another party's or person's narrative.

Well, that's a start.

On the next card in the stack I have created fields with the following labels (designating what kind of text is to go into those fields):

name of case:

setting:

time of event or action:

actor or actors:

general theme (e.g., character of person, fate, accident, desire for vengeance, malicious recklessness):

theme of this specific event or act and relationship to general theme (e.g., motivation or purpose of action; or motivation or character of actor or actors, and relationship to general theme [such as the dangerousness and fragility of everyday life or the greedy character of large corporations]):

Below the above fields I plan to put buttons that link to (existing) stacks such as "case time line", "actors", and "case scenarios".

OK. Is the stuff above helpful? What next?

&&&

The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

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