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Storytelling carries weight on the scales of justice

“The realm of probable proofs is rhetoric,” says author of new book on legal language

Diana Tyszko.

Judicial writing may not be the first thing people turn to for a good read, but U of T English professor Greig Henderson‘s new book Creating Legal Worlds: Story and Style in a Culture of Argument shows that storytelling can be an essential part of ensuring justice.

Judges who write in a plain-language, journalistic style that clearly connects the relevant facts of the case not only make themselves understandable to the public, but are more likely to arrive at a just decision, said Henderson.

The principles of good storytelling and sound legal reasoning are much the same, he said, even if it is not popular in some circles to argue that law is basically the realm of rhetoric – the use of language to persuade or motivate an audience.

“Most things in human affairs can’t be solved with Euclidean logic or necessary proofs. All we can offer is probable proofs,” said Henderson. “And law, to me, is largely probable proofs, and the realm of probable proofs is rhetoric.”

Approaching law as literature helps make it part of everyday life, something concerned as much with equity as legal distinctions, and more likely to convince the public and the parties involved in a case they have been heard and justice has been done, he said.

For all its allusions to empirical procedures and magisterial dispassion, the law is more art than science, and judges are primarily in the persuasion business.

In that sense, a judgement is much more like a short story or novel than a logical demonstration of unassailable facts. Case law and precedent are imperfect comparisons, and “the facts” are what a judge or jury say they are, Henderson notes.

Exhibit A could well be the O.J. Simpson case, where the prosecution’s story of an enraged ex-lover killing his former girlfriend and her new boyfriend was undermined by a defence “narrative” that implied it could have easily been a random act by a stranger.

While the book mentions the Simpson jury trial as an example of duelling narrative tactics, its main focus is on how judges write their decisions, and what separates the good from the bad.

“Every time a judge writes a decision, they are faced with rhetorical choices, the stories they choose to tell, and the way they choose to tell them,” says Henderson, who has been tutoring judges and conducting legal writing seminars for more than 30 years.

“They are creating legal worlds for others to live in and fashioning images of themselves as judges.”

In that regard, judges sometimes reveal more about themselves than they intend to by using rhetorical flourishes that are unnecessary or irrelevant, demonstrating their own prejudices and biases, and undermining the validity of their rulings.

United States Supreme Court jurist Oliver Wendell Holmes Jr. argued passionately for the sterilization of an inmate with mental illness. And John McClung – grandson of suffragette Nellie McClung – earned a Supreme Court of Canada rebuke for a floridly written decision that demeaned a sexual assault victim for her allegedly provocative clothing, noting she did not present herself to her attacker “in a bonnet and crinolines.”

Asked about the trial of Jian Ghomeshi, Henderson says it’s an instance of negative hermeneutics, in which defence counsel tries to disrupt the coherence and plausibility of the plaintiffs’ stories by relentlessly pointing out their inconsistencies, omissions and misrepresentations. The defence doesn’t have to proffer counter-narratives; all it has to do is demolish what the plaintiffs disclose or fail to disclose, remember or fail to remember. The judge’s decision in that case is expected March 24.

Storytelling in law should never be used simply to “spice things up,” says Henderson, but rather as “a vehicle of persuasion.”

Some of the most “rhetorically perfect” U.S. Supreme Court decisions, such as Roe v. Wade on abortion and Brown v. Board of Education on segregation, purposely took an understated approach, glossing over the terrible history of those issues to avoid inflaming passions, and focusing instead on narrow legal points that had a better chance of reaching a consensus, says Henderson.

“Eloquence is not always a virtue.”