Untold Stories: Restoring Narrative to Pleading Practice

Elizabeth Fajans, Brooklyn Law School
Mary R. Falk, Brooklyn Law School

Abstract

Although complaints in civil actions function within a web of conventional, statutory, and tactical constraints, they are nonetheless narratives. Thus practitioners whose skills do not go beyond bare-bones form-book pleading risk disserving their clients because legal readers, judges included, are as responsive to the call of stories as other readers. Yet, unfortunately, in mainstream modern pleading practice, storytelling tends to be seen either as inimical to effective pleading or as rhetorical adornment to be reserved for compelling cases. This creates a false choice for practitioners and teachers alike, and when narrative is seen as inherent in pleading, new methods of drafting and teaching follow. In short, the more useful question is not whether to tell a story, but how to tell it.

Part I provides an overview of the evolution of pleading practice and the relation of pleading and narrative, concluding that even in courts and claims where such minimal pleading is permitted?fewer today than the drafters of the Federal Rules of Civil Procedure might have intended?the writer would do well to meld the skills of storyteller with the skills of tactician, balancing the instrumental and rhetorical functions of complaints. Part II gives an overview of basic narrative theory and narrative techniques and shows how those techniques can be applied to complaint drafting. In particular, we discuss how storytelling techniques like character development, plot sequence, and detail can contribute to the creation of a complaint that has "narrative rationality"-that is, a complaint that tells a familiar "stock story" from the canon of legally cognizable wrongs, comports with the known facts, and provides a meaningful translation of the plaintiff's experience, evoking in the reader a desire that justice be done. Finally, Part III offers suggestions for teaching ourselves to draft complaints that use narrative techniques to advance the client's cause while remaining true to the client's experience.