Telling stories about cases and clients: The ethics of narrative

INTRODUCTION

In recent years, narrative has achieved great prominence in legal scholarship and in much other academic work,1 although the concept is not new. The legal realists always have emphasized the importance of stories; as long ago as 1941, Karl Llewellyn published case studies of the Cheyenne and their dispute settlement practices.2 In step with the popularity of narrative in legal scholarship, stories about the individuals behind the legal doctrine are increasingly common. While the terms "narrative" and "story" are sometimes used interchangeably,3 they are not quite the same thing. A story describes an account of a happening, while a narrative denotes a broader theme or meaning.4 Stories are the raw material of personal experience; narratives are a construction from those stories. Put another way, stories add up to narrative. When legal academics tell stories, we aim to make a larger point beyond the confines of the story.

Although some doctrinal articles use the authors' personal experiences to explicate legal analysis,6 the practice of storytelling is most common in theory-based movements7 such as lawyering theory,8 critical race theory,9 critical literary and legal theory,10 feminist theory,11 lesbian and gay theory 12 and cultural legal studies. Some of these stories are about the people behind the cases;13 others are not grounded in cases but instead in other real stories, including personal anecdote and biography. These stories portray the authors and their encounters with friends and families, acquaintances and strangers.14 Examples include Patricia Williams' now-famous trip to Benetton 15 and Marie Ashes account of her pregnancies. 16 The biographical stories include stories about jazz music" and other things. Other stories are not real stories but are fictional accounts of encounters with civil rights lawyers, their half-brothers,18 and others.19

In this essay, I consider the ethics of telling stories about cases and clients. While stories about actual clients have enlivened legal scholarship across a wide range of topics, lawyering theory relies most heavily on these kinds of stories, especially stories about clients whom the authors have represented. Within lawyering theory I include a loose-knit group of scholars who write about the intersection of theory and practice.20 While writing in this area has taken off in a number of different directions to include the ethics of advocacy and other inquiries, this movement at its heart addresses the question of the nature of the attorney-client relationship and what it means to represent clients. A number of strong voices within this movement urge a more collaborative approach to lawyering that integrates the perspective of both lawyer and client. These approaches are variously described as critical theory, client-centered theory, and clinical theory. I name these theories "collaborative lawyering theory."21

Since the explosion of clinical scholarship within the last decade,22 it has become increasingly rare to read a story about lawyering that does not include a story about an actual client. These stories give life to otherwise wooden descriptions of lawyer-client interactions, make real the more theoretical and abstract underpinnings of the articles, and open a window on the lives of the individuals in the cases. Yet telling stories about clients raises different issues than telling stories about litigants from published cases or media accounts, characters in books, or the author's own life. Even if the ethical rules governing client confidentiality permit this practice where the client's identity is not disclosed,23 the client focus of the collaborative lawyering approach suggests that legal academics need to consider whether clients should have a say in decisions about how their stories are told. Yet surprisingly, while clients are in the forefront of many law review articles, they are almost invisible in the decision making process about which story to tell or whether to tell a story at all.

Legal scholars have virtually ignored the ethics of the widespread practice of writing about clients.24 While the ethics of scholarship literature examines the integrity of scholars' conclusions,25 it does not look in depth at clients as the subject of scholarship. The authors of stories about clients also sidestep the ethical issues. Authors typically change the names of their clients or the content of the stories as they were initially told,26 but only a handful seem to have explicitly discussed the written product with their clients or given their clients an opportunity to change the content.27

I have been among those authors who have used client stories without resolving the thorny ethical issues. In order to ground my analysis of case theory in an article entitled Give Them Back Their Lives: Recognizing Client Narrative in Case Theory,28 I told several stories about a criminal case in which my clinic students represented an African-American client charged with assault and battery, resisting arrest, and disorderly conduct. One story was based on the public record of an earlier trial on the same charges, including the client's testimony. Another story gave a brief synopsis of how we came to represent the client and his decision to plead guilty rather than risk the consequences of another trial. Another story, looking back on the case after it was resolved, imagined alternative case theories that could have explained what happened to the client. Several of these theories used the lens of race to explain what happened to the client; another theory speculated that the client was gay and used sexual orientation to explain the client's arrest. We lost contact with the client after our representation ended and I did not obtain his consent to tell any of these stories in the article.