Practicing law forces me to deal with narrative and oppression, but it never gives me a chance to think about it.
Early in my litigation career, I had a conversation with my mother about the purposes of a trial lawyer. She was adamant that my job, and the job of any lawyer at trial, is to present “the truth” (disclaimer: my mother is not a lawyer). I was equally adamant that my job was make my client the hero of a sufficiently compelling story – to control the narrative.
“The truth” wasn’t my job; “the truth” was the jury’s job, and it probably existed at the intersections between the story I told and the story opposing counsel told, insofar as twelve randomly-selected community members could tease it out. (U.S. trial law runs on a great deal of faith in the critical-thinking skills of twelve randomly-selected community members.)
The storytelling aspect of litigation is actually great fun, if you’re into highly-structured storytelling, and most of the truly great litigators I’ve known were really into highly-structured storytelling (also arguments, yelling, and boats). I’m into storytelling myself. But I’m not into storytelling as a litigator, for one reason: it gives me no time to think.
Litigators are firefighters. A great deal of what they do is handle emergencies, especially when they work in criminal defense (my litigation of choice). Firefighters put out fires. They don’t think about fires; they don’t analyze the composition of fires or what they reveal about the person who set them or how the methods firefighters use affect (and effect) social roles and mores. Litigators don’t analyze these things, either; they don’t have time. Solve a problem, move on.
The thing is, legal problems aren’t merely surface issues. Courts know this; there’s a whole area of law known as “political question doctrine” that walks the line between things the law is equipped to solve and things it is not. Lawyers know this, too. Even lawyers in public service positions like prosecution, public defense, and child abuse/neglect (in which the attorney may act as guardian ad litem for the child), realize that there are only so many problems they, as lawyers, can solve. The rest are societal, cultural, structural; they’re things no one individual can “fix” in a courtroom.
Brown v. Board of Education, for instance, fundamentally changed how we view public education in America – but Linda Brown never attended an integrated public school.
Because we’re not equipped to fix them in a courtroom, we, as lawyers, don’t think about them. We put out a client’s fire as best we can and we move on. For most trial lawyers, trying to make good law or policy is an unaffordable luxury; it’s reserved for appeals or members of the SCOTUS bar.
Yet thinking about the bigger personal, social, and political consequences of our storytelling is precisely what fascinates me the most. It was the question that absorbed me in law school, and it’s one that I’m increasingly frustrated to be unable to consider today – so much so that I quit law for freelance writing in 2009 so I’d have time to work on it.
To Kill a Mockingbird offers an over-the-top, if well-known, example. Tom “Innocent McFalselyAccused” Robinson has the best possible story and the best possible storyteller (Scout, the narrator, spends nearly the entire book to this point making sure we understand exactly how ideal Atticus Finch is).
But Robinson is also a disabled black man accused of rape by a white family. He’s convicted and sentenced to death (SCOTUS didn’t hold that capital punishment in non-homicide cases was unconstitutional until 1977). Atticus is convinced he can get the judgment overturned on appeal, but Robinson doesn’t survive this long; he commits suicide by prison guard.
The burden of being an imprisoned, disabled black man outweighs the promise that someone will tell a better story on Robinson’s behalf. The points of privilege/oppression that Tom Robinson occupies are literally life-altering – but they are also the points that, as a lawyer, Atticus Finch can’t touch.
Yet how our intersecting privileges and oppressions affect/effect the stories told and who controls those stories are precisely the issues that fascinate me most. Those are the issues I want to discuss, to analyze, to challenge with students so that both they and I come out better able to, as Howard Bloom put it, “overhear ourselves when we talk to ourselves.” (Howard Bloom would be aghast to hear that I think social-justice-movement-based theories, like feminism, can be excellent tools with which to do just that – but I do.)
Courtrooms are, of course, hardly the only place in which we tell stories. They’re not even the only place in which I’ve told stories in my own career. Litigation is one type of storytelling, one with very specific and detailed rules that require years to learn.
But we’re a storytelling species; we are telling tales about ourselves and others all the time. Some of these are actually “stories” – oral tales, news reports, sitcoms, flash fiction, short stories, novels, memoir, etc. Some of these aren’t officially “stories” but still tell us who we are, who we should aspire to be, and how to get there – advertisements, political speeches, gossip.
All of them have as their stock-in-trade certain images, metaphors, and stereotypes, and all of them are aimed at telling us, in one way or another, who we are (individually and collectively) and how we fit into the world – or don’t. We are constantly writing into and reading out of our stories our cultural instructions on what is “good” and “bad,” who “counts” as a full-fledged human being and who does not. We’re not always aware this is what we do – much of it often seems like “just the way the world works” – but we’re always doing it, and awareness of it is the first step toward controlling and, if needed, changing it.
When I practiced law, I didn’t have the time or tools to tackle questions like these. As a freelance writer who spends a lot of free time reading social justice theory, I do, but I still lack the credential that would allow me to do the one thing I most want to do: teach this stuff. In literature. To students.
So a Ph.D. it is.