Narrative Analysis as a Bridge between Humanistic and Legal Clinics Methodology. American and Italian Connections

Abstract

Presenting itself as exemplifying a certain postmodernist trend, the law and narrative approach has used methodological rigor to achieve success, riding the wave of the cultural and narrative turn of the seventies and eighties in such a way as to define the study of legal narrativity as a “useful enterprise,” imagining that narration constitutes a legal category in its own right. If in Jerome Frank’s day narration was generally associated with the linguistic distortions and manipulations practiced by attorneys and witnesses, it later came to be analyzed in terms of the consistency and plausibility of the stories told for the purpose of persuading a jury and, more recently, as a tool for coherently modelling fact and also as a tool for practicing clinical lawyering and case theory. The result is that we can now attribute additional values to narrations: a) as a method to analyse legal cases and re-construct facts in context; b) as a method to educate lawyers and other legal actors towards a more conscious use of storytelling in their daily activities; c) and as a device to include voices that are silenced or marginalised within legal discourse. Intended as a contribution to this debate, the paper offers a “narrative legal analysis” – situated in a civil law system – proposing the design of a research action that gives due consideration to voices that are otherwise not heard.

Keywords:

• Case analysis
• human rights protection
• clinical approaches
• legal narratology

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).

Notes

1 Cf. Guyora Binder and Richard Weisberg, Literary Criticism of Law (Princeton, NJ: Princeton University Press, 2000), 205.

2 Jerome Seymour Bruner, Acts of Meaning (Cambridge, MA: Harvard University Press, 1990).

3 Rita Charon, Narrative Medicine (New York: Oxford University Press, 2006).

4 David Herman, Manfred Jahn, Marie-Laure Ryan, “Introduction,” in Routledge Encyclopedia of Narrative Theory, eds.. D. Herman, M. Jahn, and M.-L. Ryan (London: Routledge, 2008), IX–XI.

5 Hayden, White, “The Value of Narrativity in the Representation of Reality,” in On Narrative, ed. T. W. J. Mitchell (Chicago, IL: The University of Chicago Press, 1981), 1.

6 Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Cambridge, MA: Harvard University Press, 2000).

7 Flora Di Donato, La costruzione giudiziaria del fatto. Il ruolo della narrazione nel ‘processo’ (Milano: Franco Angeli, 2008); The Analysis of Legal Cases. A Narrative Approach (London: Routledge, 2020).

8 Maurizio Ferraris, Manifesto del Nuovo Realismo (Roma-Bari: Laterza, 2012).

9 Michele Taruffo, La semplice verità. Come i giudici costruiscono i fatti (Roma-Bari: Laterza, 2009).

10 Jerome Frank, Courts on Trial (Princeton, NJ: Princeton University Press, 1949), 23–4.

11 Julius Paul, The Legal Realism of Jerome N. Frank. A Study of Fact-Skepticism and the Judicial Process (Herausgeber: Green, Leon, 1959), 77.

12 Jerome Frank, Courts on Trial (Princeton, NJ: Princeton University Press, 1949), 27.

13 Jerome Frank, Law and the Modern Mind (New Brunswick: Transaction Publishers, 1930); “A Plea for Lawyer-Schools,” Yale Law Journal 56, no. 8 (1947): 1303–44; “Say It With Music,” Harvard Law Review 61 (1948): 921–57.

14 Katerine R. Kruse, “Getting Real About Legal Realism, New Legal Realism, and Clinical Legal Education,” New York Law School Law Review 56 (2011–2012): 659–81.

15 See the minutes of the Legal Storytelling Symposium in The Michigan Law Review 87 (1988–1989).

16 Peter Brooks and Paul Geewirtz, Law’s Stories (New Haven, CT: Yale University Press,1996).

17 Patricia Ewick and Susan Silbey, The Common Place of Law. Stories from Everyday Life (Chicago, IL: The University of Chicago Press, 1998).

18 Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Cambridge, MA: Harvard University Press, 2000).

19 Peter Brooks “Narrative Transactions – Does the Law Need a Narratology? ,” Yale Law Journal of Law and Humanities 2 (2006): 201–19, eds. M. Del Mar and Peter Goodrich, Legal Theory and Humanities. Vol. 5 (Surrey: Ashgate, 2006/2014), 171–98.

20 Ann Shalleck, “Narrative Understanding: Revisiting the Stories of Lay Laywering,” Clinical Law Review 24, no. 2 (2018): 467–86.

21 Guyora Binder and Richard Weisberg, Literary Criticism of Law (Princeton, NJ: Princeton University Press, 2000), 205.

22 Peter Brooks, “Narrativity of the Law,” Law and Literature 14, no. 1 (2002): 1–10.

23 Martha Nussbaum, Not for Profit: Why Democracy Needs the Humanities (Princeton, NJ: Princeton University Press, 2010); Sarat, Austin, Anderson, Matthew, Frank, Catherine O, eds, Law and the Humanities: An Introduction (Cambridge: Cambridge University Press, 2010); Desmond Manderson, ed. Law and the Visual: Representations, Technologies, Critique (Toronto: University of Toronto Press, 2018).

24 Carolin Grose, Margareth E. Johnson, Lawyers, Clients and Narrative (Durham: Carolina Academic Press, 2017).

25 Stefan Ellmann, et al., Lawyers and Clients. Critical Issues in Interviewing and Counseling (St. Paul, MN: Thomson Reuters, American Casebook Series, 2009), 139 ff.

26 Richard Delgado, “Storytelling for Oppositionists and Others: A Plea for Narrative,” Michigan Law Review 87, no. 8, (1989): 2411–41.

27 Anthony Alfieri, “Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative,” Yale Law Journal 100 (1990–1991), 2107–47.

28 Anthony Alfieri, “Rebellious Pedagogy and Practice,” Clinical Law Review 23, no. 5 (2016): 36.

29 López, Gerald P., Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (San Francisco, CA: Westview Press, 1992).

30 López, Gerald P., “Lay Lawyering,” UCLA Law Review 32 (1984): 1–60.

31 López, Gerald P., Rebellious Lawyering. San Francisco: Westview Press.

32 Flora Di Donato and Paolo Heritier eds. “Humanities and Legal Clinics. Law and Humanistic Methodology,” Special issue of Teoria e critica della regolazione sociale, 2, (2017).

33 The workshop was organised in collaboration with the Italian Society for Law and Literature (ISLL). The ISLL, based in Bologna, is devoted, among other fields, to the exploration of the binomial of law and narrative. See Maria Paola Mittica Mittica, “Cosa accade al di là dell’Oceano? Dirittto e Letteratura in Europa,” ANAMORPHOSIS ‒ Revista Internacional de Direito e Literatura 1 (2015): 3–36, http://rdl.org.br/seer/index.php/anamps/article/view/.

34 Jeanne Gaakeer, Judging from Experience (Edinburgh: Edinburgh University Press, 2019).

35 On the concept of Narratology, see Monika Fludernik, An Introduction to Narratology (London: Routledge, 2009). Gerald Prince, Narratology: The Form and Functioning of Narrative (Berlin: Mouton Publishers, 1982/2012). About the European context, see for example, the project “On stories and storytelling as a basic cultural condition underlying the Norwegian criminal process,” directed by Frode Helmich Pederson in Norway: https://www.uib.no/personer/Frode.Helmich.Pedersen.

36 Ann Shalleck and Jane H. Haiken, “Supervision: A Conceptual Framework,” in Transforming the Education of Lawyers: the Theory and Practice of Clinical Pedagogy, eds. Susan Bryant, Elliott S. Milstein, Ann Shalleck (Durham: Carolina Academic Press, 2014), 169–203; Flora Di Donato, The Analysis of Legal Cases. A Narrative Approach (London: Routledge, 2020).

37 Jeanne Gaakeer, Judging from Experience (Edinburgh: Edinburgh University Press, 2019).

38 Jeanne Gaakeer, “The Perplexity of Judges Becomes the Scholar’s Opportunity,” eds. Greta Olson and Franze Reimer, German Law Journal. Special Issue Law’s Pluralities 2 (2017): 233–440, 337 ff.

39 Frank S. Block, ed., The Global Clinical Movement (Oxford: Oxford University Press, 2011).

40 For an overview of the transnational dimension of global clinical legal education that takes the European context into account, see Richard Wilson, R. The Global Evolution of Clinical Legal Education More than a Method (Cambridge, MA: Cambridge University Press, 2018).

41 Barbara Sorgoni, “What Do We Talk About When We Talk About Credibility? Refugee Appeals in Italy,” in Asylum Determination in Europe, eds. Nick Gill and Anthony Good (Cham: Palgrave Socio-Legal Studies, Springer, 2019).

42 Guy Coffey, “The Credibility of Credibility Evidence at the Refugee Review Tribunal,” International Journal of Refugee Law 15, no. 3 (2003): 377–417.

43 Olga Jubany, Screening Asylum in a Culture of Disbelief (Cham: Springer, 2017).

44 For the whole stories, see Flora Di Donato, The Analysis of Legal Cases. A Narrative Approach (London: Routledge, 2020), ch. 9.

45 Excerpts from the minutes of the committee, 21.03.2014.

46 Flora Di Donato, The Analysis of Legal Cases. A Narrative Approach (London: Routledge, 2020).

47 Ibid.

48 Frank S. Block, ed., The Global Clinical Movement (Oxford: Oxford University Press, 2011).

49 Colette Daiute and TeundeKovács-Cerović, Minority Teachers – Roma in Serbia – Narrated Education Reform (Belgrade: Institute of Psychology, Faculty of Philosophy, University of Belgrade Association of Pedagogical Assistants of Serbia, 2017).

Additional information

Notes on contributors

Flora Di Donato

Flora Di Donato is Professor of Philosophy of Law and of Clinical Legal Training at the University of Naples Federico II. She has been a lecturer, a research fellow and a visiting scholar in several Italian, Swiss and USA universities. Her contributions to fact-finding, lawyer- client relationships, narrative analysis and, more generally speaking, the analysis of the law from a bottom-up perspective have made her a pioneer in translating and in further developing some aspects of contemporary legal education – in particular the clinical law approach – from the U.S. context to that of Europe. In 2010, she was awarded the Annual RCSL Adam Podgórecki (ISA) Prize for the book La costruzione giudiziaria del fatto. Il ruolo della narrazione nel processo (Milan, 2008). In 2020 she published with Routledge The Analysis of Legal Cases. A Narrative Approach (New York and London).