Give them back their lives: recognizing client narrative in case theory.

• Author: Miller, Binny

INTRODUCTION

In recent years the concepts of lawyering as storytelling and client voice as narrative have come into vogue.(1) As a practical matter, lawyers have always seen their work as in part "storytelling,"(2) but only recently has legal scholarship framed lawyering in these terms.(3) By and large, legal scholars have approached storytelling and narrative from the standpoint of theory -- critical race theory,(4) critical literary and legal theory,(5) feminist theory,(6) lesbian and gay theory,(7) and ethnographic theory.(8) In contrast, clinical theory has long grounded narrative in the actual practice of lawyering.(9) The emerging theoretics of practice literature draws on all of these vantage points in looking at the intersection of theory and practice in legal advocacy.(10)

Although these approaches differ in some respects, they share enough in common that they can be grouped under the rubric of "critical lawyering."(11) These critical theorists posit that client voices have been muted by the narratives that lawyers tell on their behalf, and urge lawyers to set aside their own stories in favor of client stories.(12) They follow in the footsteps of the client-centered movement, which has argued that clients should play a greater role in their own cases.

The critical and client-centered movements add to our understanding of the role that client voices can and should play in legal representation. But in the rush to embrace client voice, these scholars have virtually ignored the critical role that case theory can play in linking client stories to the narratives that lawyers tell on behalf of clients.

Case theory -- or theory of the case -- can be seen as an explanatory statement linking the "case" to the client's experience of the world. It serves as a lens for shaping reality, in light of the law, to explain the facts, relationships, and circumstances of the client and other parties in the way that can best achieve the client's goals.(13) The relevant reality combines the perspectives of the lawyer and the client with an eye toward the ultimate audience -- the trier of fact.

Despite the view of many lawyers that case theory is central to the task of lawyering,(14) and despite its prominence in highly publicized trials,(15) most accounts of lawyering do not explore the richness of case theory.(16) For writers of trial advocacy texts, case theory is an important lawyering "skill," yet their works contain at best only skeletal analyses of the concept. For client-centered theorists, case theory plays little role in client decisionmaking; at best, it is one of a number of decisions that permit some client participation, and at worst, it is a task for lawyers alone. For critical theorists, both the concept of case theory and the role of clients in decisionmaking about case theory remain partially obscured.

This article is about case theory and its implications for incorporating client narratives in litigation.(17) In seeking to understand the connections between voice, narrative, and case theory, I look not only to theory but to my experience as a clinical teacher and criminal defense attorney.(18) I explore how the practice of lawyering can be reconstructed to embrace a greater role for clients in constructing case theories, both through the images of the client the lawyer presents in the case theory and through active client participation in developing and choosing the case theory.(19) Although one aim of case theory is to persuade the trier of fact, my focus is not on the sorts of inferences and arguments that might persuade a jury but rather on the role of the client in shaping case theory.

In Part I, I explain what case theory is, what it does, and how a lawyer develops a theory for a particular case. I then discuss the limited role clients play in developing and choosing case theory in the eyes of both trial advocacy writers and the client-centered movement. Finally, I consider how the critical theorists' emphasis on power dynamics and client narrative can be translated to case theory. Although these three models offer some important insights into case theory,(20) I Conclude that they are ultimately unsatisfying in weaving clients' stories into case theory or in giving clients power to make decisions about how their cases are presented.

In Part II, I tell the story of a criminal case in which the issue of race played a key role in my clinic students' development of the case theory. Our client, a black man, was charged with disorderly conduct, resisting arrest, and assault and battery after he was stopped and wrongly accused of shoplifting by three white security guards.(21) The case raised provocative questions about the relevance of our client's life experience to the various case theories that we, as his lawyers, could construct on his behalf.

I use one client's story as the backdrop to my discussion of case theory; this choice creates a tension between the story and the theory.(22) Few articles in the story-theory genre find comfortable ground in the often awkward fit between story and theory, where stories either serve as a perfunctory reference for "theoretical" conclusions,(23) or instead carry the entire weight of the article.(24) I seek to integrate the two by using the theory to explain the story and the story to critique and revise the theory. Through this back-and-forth interplay, theory can inform practice, and practice can give meaning to theory.(25)

In Part III, I offer my conclusions about how to reconstruct case theory to capture more fully the perspectives of clients. Although the context -- both the situation of our client and criminal practice more generally -- is crucial, my conclusions about case theory apply across a wide range of lawyering.(26) In reimagining client participation in case theory development, I draw from images pioneered by the critical lawyers and return to the story from Part II to offer some new images our client's story suggests. In coming full circle from the perspective of race to sexual orientation and back again, this concept of case theory as life experience demonstrates the elusive truth of what happened in any case. It also reveals how our own experiences as lawyers shape -- for better or worse -- the stories that we perceive and elicit from our clients.

1. THE ROLE OF CASE THEORY IN LAWYERING

   There is little empirical evidence about the role case theory actually plays in the practice of law.(27) The lone published study, whose participants were criminal defense attorneys, suggests that fewer than half of the attorneys surveyed typically develop a case theory before negotiating with the prosecutor.(28) The wording of the survey question, however, makes this conclusion suspect,(29) and the participants may not be representative of criminal defense lawyers as a group or of lawyers in other kinds of practices. In contrast, anecdotal evidence -- including articles in practitioner-oriented publications(30) and media accounts of trials(31) -- suggests that case theory plays a prominent role in legal representation. While lawyers often disparage their opponents' cases as "just" theory,(32) their own case theories are almost sacred.

   Despite its importance, case theory has received little attention in standard texts on lawyering.(33) Some authors make only passing reference to the idea,(34) while even those authors who see case theory as a key piece of case planning, strategy, and analysis do not explore the idea in any detail.(35) It is easier to explain the function of case theory than to define it; as a result, the term often is used imprecisely.(36) Until we share a common understanding of the meaning of case theory, we cannot fully appreciate the importance of the concept or of the client's role in developing case theory.

   1. Traditional Model. Where is the Client?

      1. Concept of Case Theory

         Case theory provides a framework for trial preparation and ultimately for trial.(37) It has been defined as "the basic underlying idea that explains not only the legal theory and factual background, but also ties as much of the evidence as possible into a coherent and credible whole."(38) Case theory is not simply a statement of the applicable law or of the facts that support this legal interpretation, but rather it is the "basic concept around which everything else revolves."(39)

         Case theory is often described as comprising two separate theories, a legal theory and a factual theory.(40) The legal theory is "a legal framework developed by a lawyer from interpretation, analysis, and expansion of legal rules and standards"(41) while the factual theory is "the party's `story' justifying relief under the legal theory."(42) The case theory should be supported by the facts,(43) meaning that it should explain the party's version of the facts,(44) the unfavorable facts,(45) and any undisputed facts.(46) The theory must also be measured against its legal sufficiency(47) and in terms of how well it responds to the likely theory of the opponent.(48)

         The theory of the case should be expressed in simple declarative sentences(49) that combine the legal theory with central factual assertions.(50) Take, for example, a criminal case in which the defendant is accused of stealing two car seat covers that the owner last saw when he left them in his car, elevated on blocks in front of his home. The seat covers were later found in the defendant's car. The prosecution could assert that the defendant knew that the car seat covers belonged to someone else when he took them from the car and that he meant to deprive the car owner of his property. The defendant might respond that he took the seat covers because he believed that the car and its contents were abandoned. The car was stripped of its parts after it sat on blocks for over a month without being worked on.(51)

         Once a case theory is selected,(52) it serves as the centerpiece for all strategic and tactical decisions in the case.(53)...