The Stories Lawyers Tell: Linguistic Empathy in the Appellate Brief’s Statement of Facts
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Presented at Literary Linguistics in Composition & Literature: A Graduate Student Colloquium The University of Akron October 24, 2012 “The Stories Lawyers Tell: Linguistic Empathy in the Appellate Brief’s Statement of Facts” Linguistic examination of the way that persuasive legal writing employs grammatical structures to gain empathy for clients.
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The Stories Lawyers Tell: Linguistic Empathy in the Appellate Brief’s Statement of Facts
- 1. The Stories Lawyers Tell The Narrative Nature of an Appellate Brief’s “Statement of Facts” Tabitha Martin
- 2. Literary Linguistics in Nonfiction Writing • Specific linguistic components: • Not communication • A narrative framework • “Meta” language of argumentation: • Beyond rhetorical moves • And storytelling devices
- 3. Legal Writing: Memos vs. Briefs Brief Memo • • Objective Explores potential arguments for a case • • Persuasive Argues a particular “version” of the story of the case
- 4. Storytelling in Appellate Briefs • Legal writing research promotes fiction-writing techniques by outlining basic story elements • But little-to-no work about how to use them linguistically
- 5. Roadmap • Example Brief • Narrative vs. Communication Frameworks • Narrative Linguistic Devices: • Kuno's Empathy Perspective • Parentheticals • Evaluative Vocabulary
- 6. The Story: Margaret and Francie “The Plot Thickens: The Appellate Brief as Story” Kenneth D. Chestek 2007
- 7. • • Old York’s statue prohibits same-sex couples from adopting • Key Facts of the Case Margaret Rubin and Francie Kohler have a son, Johnny (borne by Francie) Francie is killed, leaving no will • Francie’s mother does not want Johnny
- 8. Narrative Framework How do we know that what you’re telling is a story?
- 9. Narrative Framework Storytelling is not an “illocutionary act.” McCawley’s example Brief example • *Fred said that once upon a time there were three little pigs. • “Margaret Rubin and Francie Kohler only wanted a child.” • Fred said that the third little pig made his house of straw. (sic) • *? We argue that M.R. and F.K. only wanted a child.
- 10. Narrative Framework •Margaret and Francie were devoted to their dream •…the couple could not have been happier S.Y. Kuroda The use of sensation words to indicate narration by relating state of mind.
- 11. Narrative Linguistic Devices Bringing clients’ stories to life with words
- 12. Empathy Perspective Susumo Kuno: Anaphora, Discourse and Empathy
- 13. Empathy Perspective Syntactic Prominence Principle Sentence subject NP No. of Sentences 14 Margaret, Francie, or both Office of Children & Youth (OCY), Delia (caseworker) 4 Superior Court of Old York 3 Francie’s mother, Stella 3 State, Old York 2 Other 2 TOTAL 28
- 14. Empathy Perspective Descriptor Empathy Hierarchy “Stella, who never approved of Margaret’s relationship with Francie…” VS. Stella, who never approved of Francie’s relationship with Margaret
- 15. Empathy Perspective Word Order Empathy Hierarchy Word Order Empathy Hierarchy Margaret Rubin and Francie Kohler only wanted a child. {Margaret’s and Francie’s commitment…} Margaret and Francie were devoted to their dream, however. Margaret and Francie went to Vermont… Margaret and Francie went to several adoption agencies…
- 16. Paragrammatical Structures “The grammar of the reflective mentality.” -A. Palacas, “Parentheticals and Personal Voice”
- 17. Paragrammatics “... they decided, as do many committed couples, that they wanted to raise a family.” Parentheticals The voice of the writer/narrator inserted into the narrative
- 18. Paragrammatics “…Ms. Clarke recommended that the adoption petition be denied, solely on the basis that Margaret admitted that she was a lesbian.” Evaluative Vocabulary Less obtrusive commentary on the narrative action
- 19. • The purpose of the Appellate Brief is to persuade the court to view a case (“story”) from a particular POV. • To craft this POV, particularly in the Statement of Facts, a legal writer should use narrative writing techniques to present a persuasive case. • The narrative framework can be shown (and used) linguistically. In Conclusion
Notas del editor
- Introduction--law school writing center--NOT a lawyer! Based on my observations and research and conversations with LARW professors Could be applicable to othertypes of persuasive writing, but this is what I’m immersed in!
- The literary linguistics components indicate a narrative framework, versus communication paradigm. These are part of a combination of “meta” language contained in argumentation: the rhetorical moves, the storytelling devices, and now, the specific linguistic pieces that we can point to that reflect these somewhat-amorphous categories. The linguistics are concrete.
- Both have Statements of the Facts of the case. Memo must be objective, but the brief's will have a "slant"
- Use of narrative in the field- “Applied Legal Storytelling Conference”
- Sample brief written as an example of using fiction devices in persuasive legal writing taking the “boring” out of briefs, and using emotion to appeal to judges
- James McCawley (“Speech Acts and Goffman’s Participant Roles”): The only illocutionary {communication} acts that occur for a storyteller are “reports of what the teller said about the story, not what he said in telling it” The first McCawley example is not “right” to our ears; the second is grammatically correct, but loses the effect of the story--same goes for the second example that I changed from the brief.
- Kuroda used his native Japanese to easily illustrate the differences in the use of adjectives that show emotion or sensation: there is no grammatical way to use such adj with a 2nd or 3rd person pronoun in Japanese--because then the speaker would be representing the “feeler”--which is what a storyteller does: represents the character (writer “puts on” the persona and “feels”). The legal writer tries to act as storyteller-- to bring the experience of his “characters” closer to the reader.
- With very specific uses of words by structuring them in key ways
- The role of the persuasive writer is like that of a movie director, deciding which is the best perspective from which to tell the story. Where writers place their “cameras” influence where the reader’s empathy will most likely lie. He outlines various principles that linguistically support this idea. Three of them are particularly relevant to our example brief.
- FIRST The writer gives “syntactic prominence” to the person that he wants the reader to empathize with. Empathy resides with the subject of the sentence.
- SECOND The use of Margaret as the descriptor of the relationship (the “possessor”)--even though the subject of the sentence is FRANCIE’s mother--gives *extra* emphasis to her as the empathy subject (client).
- THIRD While these show Margaret and Francie as the topics of empathy, in fact Margaret is the true focus. This rule shows that empathy resides with the “first” (left-most, in English) subject in plural constructions, of which Margaret is.
- Paragrammar shifts the “footing” between the narrator (writer) telling the story and then commenting on the story. (ref. to previous discussion of The Three Little Pigs) We will look at 2 exmaples: parentheticals and evaluative words
- FIRST Commenting on the action-- the contrast of the interruptive quality of the narrator’s “voice” brings the narrative quality more sharply into focus
- Subtle way that the narrator/writer directs the emotional “direction” of the reader EVALUATIVE ADVERB *grammatically unnecessary; persuasively significant*
- The implication, then, for teachers of persuasive writing especially, is that this type of narrative focus can be taught linguistically, not just in a general sense.