A famous early sociological study of American lawyer-client relations took its title from a direct quote uttered by one of the lawyers studied: "We don't care about what happened, we only care about what is going to happen." [Hosticka: 1979] The quote nicely captures a basic institutional feature of most legal practice in the United States: a lawyer only attends to the story a client attempts to tell to the extent that the story provides resources for solving what the lawyer understands to be the client's legal problems. This filtering of the client's story --- either passively through inattention to "irrelevant details" or actively by control of what the client says through interruption, directive questioning and other forms of topic control---is closely related to another institutional feature of American lawyering. This second feature I term the "Greyhound bus" approach: lawyers in effect tell clients, "tell me your destination, then take off your shoes, go to sleep, and leaving the driving to me." [See Mather, Maiman & McEwen 1995.] Common to both institutional features is a deep, unquestioned belief that clients primarily care about the outcomes their lawyers deliver and are either indifferent or at least tolerant to the process that produces the outcomes, even if what they believe to be their "real story" is not heard and acted upon.
A growing body of social science research strongly suggests the need for reconsideration of these institutional practices--and the underlying belief system--of American lawyering. Particularly significant is the work on "procedural justice" by social psychologists such as Tom Tyler, E. Allan Lind, and Jonathan Casper that has shown in a wide variety of research settings that litigants give great weight to process in evaluating whether "justice has been done," and that a key component of such "procedural justice" is whether they have been "heard." [Lind & Tyler 1988; Casper, Tyler & Fisher 1988] The Effective Lawyer-Client Communication (ELCC) project was initiated in 1998 by Washington University and the Centre for Legal Education in Australia and now includes other participants from Australia, England, India, Israel, Scotland, South Africa, and the United States and from a wide variety of disciplines. The long-term goal of the project is to determine whether international and interdisciplinary collaboration on the issue of lawyer-client communication can actually change basic institutional practices and beliefs in the legal profession. (2)
The ELCC project has begun to produce audiovisual material to illustrate the importance of lawyer-client communication for use in law schools and professional development workshops. (3)
One such video is a 15 minute series of scenes edited from the recent movie Amistad (based on the 19th century slave ship mutiny and subsequent Supreme Court case) which provide a kind of fable or parable about what it means to learn and tell a client's story. (4) I entitled this video, What is Their Story?, borrowing a key line in the movie spoken by John Quincy Adams.
Amistad is the story of Sengbe, a West African who was captured by Spanish slave traders in 1839 and brought to Cuba, where he was sold into a life of plantation labor. (5) On the way to this plantation, however, "Cinque," as the Spaniards called him, broke free of his shackles and with 52 other Africans took over the slave ship, Amistad. They spared only two Spaniards, whom they ordered to sail for Africa, but the Spaniards steered instead along the American coastline until a U.S. Navy vessel intercepted them off Long Island Sound almost two months later. Cinque and the others were soon imprisoned at New Haven, Connecticut, where abolitionists took up their cause and began a long legal battle to win their freedom. Claimed as property by those who had purchased him and charged with murder by the government of Spain, Cinque insisted that he was a free man who had fought to reclaim his rights. His case finally came to the Supreme Court, where former President John Quincy Adams defended him, overcoming pressures from both the White House and Southern politicians to win a victory that marked a turning-point in the struggle to end slavery in the United States. United States v. Amistad, 50 U.S. 518 (1841). Vindicated at last, Cinque and his companions sailed home to Africa.
The 15 minute video consists of seven scenes.
SCENE 1 takes place outside the federal courthouse in New Haven, immediately after a chaotic hearing. That court hearing began with a federal prosecutor charging Cinque and his companions with piracy and murder. A leader of the abolitionist movement, Lewis Tappan, then interrupted to present a writ of habeas corpus to release the prisoners. He was rebuffed by the judge, who pointed out that Tappan was not a lawyer. The judge barely caught his breath before being presented with a rapid succession of other petitions. The naval officers who brought the Amistad to shore made personal salvage claims for the ship and its "cargo." The surviving Spaniards, Ruiz and Montes, through counsel, presented a bill of sale purporting to prove their ownership of the prisoners. The most dramatic moment came when the U.S. Secretary of State pushed his way through the crowd to announce that he was, pursuant to a treaty agreement, claiming the ship and its cargo on behalf of the Queen of Spain.
The video begins with a frustrated Lewis Tappan walking down the courthouse steps accompanied by Theodore Jodson (played by Morgan Freeman), an ex-slave who is also active in the abolitionist movement and who brought Tappan's attention to the Amistad case. (6) They are approached by a rather scruffy-looking young man who identifies himself as "Roger S. Baldwin, attorney at law." When Tappan asked him what kind of law he practices, Baldwin replies:
"I deal with property. This is clearly a property issue. All the claims here- every one of them-- speak to the issue of ownership."
Tappan is not interested in Baldwin's offer of services, brushing him off by saying, "What's needed here is a criminal attorney--a trial lawyer."
SCENE 2 is set in a dim, fire-lit tavern where Baldwin is busy tucking food away while talking to Tappan and Jodson, who are now willing to consider using him, having been turned down by John Quincy Adams. (7) Between mouthfuls Baldwin tells them,
"The case is much simpler than you think. It's like everything--land, livestock, heirlooms, what have you. ... You can only buy or sell slaves if they are born slaves, as on a plantation. (8) ... Let's say they are born slaves. Then they are possessions and no more deserving of a criminal trial than a bookcase or a plough. And if they were not born slaves, then they were illegally acquired. Forget mutiny, piracy, murder -- all the rest. Those are subsequent, irrelevant occurrences. Ignore everything but the preeminent issue at hand -- the wrongful transfer of stolen goods. Either way we win!"
Tappan objects, "This war must be waged on the battlefield of righteousness."
Baldwin: "The what?"
Tappan: "It would be against everything I stand for to let this deteriorate into an exercise in the vagaries of legal minutiae."
Baldwin: "I don't know what you're talking about, Mr. Tappan, but I'm talking about the heart of the matter."
Tappan: "As am I. It is our duty as abolitionists and Christians to save these people. These are people, not livestock." He then goes on to say that it is more important to make the right statement than to win.
Baldwin then turns to Jodson, "Well you want to win, don't you?" And when Jodson replies, "Yes," Baldwin acts as if the matter is closed: "So do I."
For Baldwin the Amistad prisoners are literally property, objects of a dispute. His strategy is problematic for the abolitionists, because if they were born slaves (in Cuba, as the Spaniards claim) under his theory they remain slaves, albeit immune from prosecution. (9) At this point the video presents a dramatic (albeit oversimplified) example of the two features of legal practice mentioned at the beginning of this essay: filtering out all parts of a story except those "facts" that relate to "the issue at hand" and a single-minded focus on outcome.
SCENE 3 takes place in the prison yard, where Baldwin is trying to find out from Cinque and his companions whether they were captured in Africa or born into slavery. Inasmuch as a major theme of the ELCC project is to encourage lawyers to use linguists to improve the effectiveness of their communication with clients, this scene provides some enjoyable irony. Baldwin is accompanied by a professor of linguistics who is as clueless as Baldwin about what Cinque is saying, but the linguist pretends to be translating. Here are some of the subtitled responses by Cinque and his companions: "What do you want?...Is he here to help us? I don't know. ...What does he want? ... He's an idiot. He just likes to hear himself speak."
The scene illustrates miscommunication not only because the supposed linguist expert is clueless (and won't admit it) but also because the lawyer, in classic style, is only interested in asking his "clients" (who don't even know he represents them) about "facts" relevant to his developing theory of the case and offers no opportunity for them to initiate conversation, much less "tell their story."
SCENE 4. Although unable to communicate with his clients, Baldwin discovered documentary evidence on the ship that the prisoners were indeed abducted from Africa, which he used to good effect in court. But, just as it appeared that the judge was about to rule in their favor, President VanBuren intervened (to placate the slave states) to replace the judge. Scene Four shows the end of a meeting in which Jodson again asked Adams for help after this setback. Before the edited segment, Adams had asked how Baldwin did at the trial: Jodson replied, "He did everything right to prove the case." Scene Four then shows Adams offering the following advice (in unlawyerly fashion) "for free":
Adams: "In the courtroom, whoever tells the best story, wins. What is their story, by the way?"
Adams: "What is their story"
Jodson: "They're from West Africa."
Adams: "No, what is their story?" Jodson remains silent, looking puzzled.
Adams: "Mr. Jodson, you're from where, originally?"
Jodson: " Georgia."
Adams: " Is that who you are, a Georgian? Is that your story? No, you're an ex-slave who's devoted his life to the abolition of slavery and overcome great obstacles and hardships along the way, I should imagine. That's your story, isn't it?" Jodson nods, slowly, with a slight smile.
Adams: "You have proven you know what they are. They're Africans. Congratulations. What you don't know -- and as far as I can tell haven't bothered in the least to discover -- is who they are."
SCENE 5. Adams' advice prompted Baldwin and Jodson to find a real interpreter (a member of the same tribe who had been rescued from a slave ship by the British navy and learned English serving with that crew.) I skip over the more obvious result of hearing and telling their story--the appalling story of their abduction from freedom in Africa and treatment on the slave vessel (shown as flashback at the trial) to a series of vignettes when Adams has finally agreed to join the lawyering team, as the trial court victory is appealed to the Supreme Court. Scene Five opens with Cinque talking with the interpreter in his jail cell. Cinque sends, through the interpreter, a series of questions to Adams about jurisdiction. Adams is impatient and dismissive of these questions: when the interpreter tells Adams that Cinque "will ask me why" regarding a cryptic response by Adams, Adams tells the interpreter to tell to Cinque "because I said so." Adams responds to a subsequent question with the tag line, "if he must know," but then remarks in an aside to Baldwin, "good point though." The interpreter's shuttling back and forth ends when Adams explodes in a display of testiness: "No! No! No! No! Stop this!"
SCENE 6 Cinque's persistence finally forces Adams to meet his client for the first time. As Scene Six opens we see Cinque being brought to Adams' home in shackles. In a quiet voice edged with iron, Adams tells the guards to unshackle him. I very much like the metaphor thus created: Cinque's intelligent and persistent questioning finally forces his lawyer to meet him face to face: a meeting which results in Cinque's literal and figurative unshackling. Scene Six then cuts to the end of Cinque's visit to Adams' home when Adams is talking with Cinque, through the interpreter, about the upcoming Supreme Court argument. Adams asks, rather rhetorically, "So what are we to do?" Cinque says to the interpreter, "Is he going to help? He has far many more questions than answers." Adams asks the interpreter what Cinque just said and the interpreter, obviously afraid of offending Adams, lies and says "I didn't catch it." Adams then proceeds to explain to Cinque that they face a difficult challenge ahead. Cinque responds, "We won't be going in there alone." Adams, like so many lawyers, interrupts assuming he knows what his client means and attempts to reassure him by talking about the lawyers who are working on his behalf. Cinque responds:
"I mean my ancestors. I will call into the past -- far back to the beginning of time -- and beg them to come and help me at the judgment. I will reach back and draw them into me and they must come. For at this moment, I am the whole reason that they have existed at all."
With the evocative score by John Williams playing in the background, Scene Five ends with a closeup of Adams' face, showing him deeply moved and impressed by what Cinque has just said.
Scene 7. The final scene is of Adams' argument before the Supreme Court, in which he refers to his conversation with Cinque and then makes an appeal to "our" ancestors (his and the Court's including his own father), invoking the spirit of the Declaration of Independence (which the real Adams did do before the Court). As the case rests, Cinque ask Adams, "What words did you use to persuade them?" To which Adams replies, "Yours."
Beyond some of the more obvious points early in the video (e.g. the lawyer has no idea what the client is saying but charges ahead regardless), I am intrigued that the movie treats as the most important "story" told by Cinque something which is not a conventional narrative at all--not what has "happened to him"--but his expression (in Scene 6) of religious belief about how the future is being shaped by his ancestral (not personal) past (and how his ancestors' past existed to make possible his own future). It is these "words" that Adams takes, and transforms, into his own story--personalizing his closing argument, presenting himself (finally) as his father's son -- suggesting a complex relation between "story" and the construction of character.
The video thus not only illustrates some obvious ways in which lawyers fail to hear their clients, and the importance of learning their stories, but also prompts consideration of the following questions:
1) How does a listener (or reader) recognize what is being said (or written) as a "story" rather than some other form of discourse? To the extent we provide answers in our own cultural tradition, what do we know about whether those answers apply generally in other cultures? Do there appear to be universal cultural conventions about what constitutes storytelling? (10)
2) As an expansion on (1), do stories have one or more standard structures? In particular, are there recognized storytelling traditions that do not use chronological structures?
3) What are accepted conventions on the relationship between storyteller and audience?
4) What is the relationship between first person narrative and the construction of the narrator's character?
Bruner, Jerome. 1990. Acts of Meaning (Harvard University Press).
Casper, Jonathan D., Tom Tyler, & Bonnie Fisher. 1988. "Procedural Justice in Felony Cases," 22 Law & Society Review 483
Clark, Roger S. 1999. "Steven Spielberg's Amistad and Other Things I Have Thought About in the Past Forty Years: International (Criminal) Laws, Insurance and Slavery," 30 Rutgers Law Journal 371.
Cunningham, Clark D.
1989. "A Tale of Two Clients: Thinking about Law as Language," 87 Michigan Law Review 2459.
1992. "The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse," 77 Cornell Law Review 1298.
1999. "Evaluating Effective Lawyer-Client Communication: an International Project Moving From Research to Reform," 67 Fordham Law Review 1959.
Cunningham, Clark D. & Bonnie McElhinny. 1995. "Taking It to the Streets: Putting Discourse Analysis to the Service of a Public Defender's Office," 2 Clinical Law Review 285.
Felstiner, W.L.F. 1997. "Professional Inattention: Origins and Consequences," in The Human Face of Law: Essays in Honour of Donald Harris 121-150 (Keith Hawkins, ed., 1997).
Hosticka, Carl J. 1979. "We Don't Care About What Happened, We Only Care About What is Going to Happen: Lawyer-Client Negotiations of Reality,'" 26 Social Problems 599.
Krowinski, William J. and Steven R. Steiber. 1996. Measuring and Managing Patient Satisfaction. Chicago: American Hospital Publishing.
Lind, E. Allan and Tom R. Tyler. 1988. The Social Psychology of Procedural Justice, New York: Plenum Press.
Mather, Lynn; Richard J. Maiman & Craig A. McEwen. 1995. " 'The Passenger Decides on the Destination and I Decide on the Route': Are Divorce Lawyers 'Expensive Cab Drivers?'," 9 International Journal of Law and the Family 286.
Matruglio, Tania. 1994. Plaintiffs and the Process of Litigation (Sydney: Civil Justice Research Centre)
North, Ronwyn & Peter North. 1994. Managing Client Expectations and Professional Risk (Sydney: Streeton Consulting)
Set the real-time counter on the VCR to zero ("0") at the moment the title of the film ("Amistad") appears on the screen.
Scene 1: 25:56-27:10 (e.g. from 25 minutes, 56 seconds to 27 minutes, 10 seconds)
Scene 2: 32:08-34:32
Scene 3: 37:00-39:00
Scene 4: 1:01:20-1:03:48
Scene 5: 1:59-2:01:26
Scene 6: 2:05:24-2:07:10
Scene 7: 2:14:54-2:17:40 and 2:20:35-2:20:50
1. W. Lee Burge Professor of Law & Ethics, Georgia State University College of Law. Email address: firstname.lastname@example.org
2. The Effective Lawyer Client Communication (ELCC) project web site is: http://law.gsu.edu/Communication/
3. Available at present from ELCC is an edited 90 minute video of the 1999 International Client Counseling Competition. The video shows, with captioned transcription, the winning client interview together with cross-cutting comparisons to the other two finalist teams who conducted simulated interviews of the same client. (The finalist teams were from India, South Africa and the United States.)
4. Amistad, directed by Steven Spielberg, was nominated for four Academy Awards for 1997, including best supporting actor for Anthony Hopkins' portrayal of John Quincy Adams. At present Dreamworks Pictures, which produced the movie, has only granted ELCC a limited license to show the video at conferences and has asked that the video not be copied and distributed, even at cost. We hope to work out in the future an arrangement whereby copies of this video can be made available for teaching purposes. A chart showing the time points during the full movie that correspond to the scenes in the video is appended for those readers who may wish to rent the movie for private viewing in conjunction with this essay.
5. Adapted from Amistad: A Lasting Legacy, a Film Study Guild learning kit produced by Dreamworks SKG and Lifetime Learning Systems (1997) (on file with author).
6. Jodson is an entirely fictional character, unlike the other characters who appear in the video (Baldwin, Tappan, Cinque, Adams).
7. In 1839 Adams was 72 years old and at the end of an extraordinary career as a lawyer, diplomat and politician. He had served a single term as President, from 1825-29, and then did what no other former President has done: run and get elected to Congress. As a congressman from Massachusetts he persistently presented constituent petitions to abolish slavery to the House, although denying that he himself was an abolitionist.
8. By 1839 the United States, Spain and England had all agreed by treaty to end the African slave trade, which is why it was critical for the Spaniards Ruiz and Montes to claim falsely that the Amistad "cargo" were born into slavery in Cuba. See Clark 1999: 383
9. It is doubtful that the court would have accepted the argument that a slave, like a plough, could not be prosecuted for murder. The real Baldwin did not adopt such a simplistic theory and was himself a committed abolitionist, arguing in the actual case that the Amistad prisoners became free the moment they stepped foot on the shores of a free state, New York. Clark: 392 n62. He was probably an older and more accomplished lawyer at the time of the Amistad case than the character portrayed in the movie; less than ten years after the case he served as governor of Connecticut.
10. I hope to explore a number of intriguing lines of thought about the universal and fundamental nature of narrative thinking suggested by the influential psychologist Jerome Bruner (see Bruner 1990).