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Life of a Law Student, University of Houston Law Center

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More on Storytelling and the Law

By: Luke Gilman | Other Posts by
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In Duke Rape Case Fall Out – the Power to change our Collective Narratives? I discussed narrative as the little hypotheticals we go through to test the believability of facts when we’re evaluating something we’ve been told. A lawyer-friend of mine started me on this idea of narrative and the law a few days ago and now I’m seeing it everywhere.

New Orleans Attorney Raymond Ward had a perfect illustration of how savvy judges deal with narrative in a recent post Counting each shot -

In Atkins, a majority of the Court held that the Eighth Amendment prohibits execution of the mentally retarded. Justice Stevens, writing for the majority, wants to make the defendant’s mental retardation outweigh the heinousness of the crime. So he must downplay the crime. Notice how he does this:

At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Justice Stevens relegates the murder to a subordinate clause, puts it in the passive voice, and describes it in just seven words. With no punctuation in Justice Stevens’s description, the reader can zoom past the murder without slowing down.

Justice Scalia, writing in dissent, has the opposite goal: he wants to show that the heinousness of the crime outweighs the defendant’s retardation. Notice how he accomplishes his goal:

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.

Justice Scalia adds details that Justice Stevens omits, including details about the victim. He puts all the action in active voice, with the defendant as the actor. And when he gets to the actual murder, he renders it in slow motion. He counts each shot.

Noted Houston trial attorney Jim Perdue has been known to teach a course here at the University of Houston Law Center from time to time on Storytelling in the law, based on his books Winning with Stories, I Remember Atticus, and Who Will Speak for the Victim?. All three are available at the UHLC library for those interested.

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