Inferring and Explaining

ChaPter fourteen Evidence, Explanation, and Narrative Examining law as narrative and rhetoric canmeanmany diferent things: exam- ining the relation between stories and legal arguments and theories; analyzing the diferent ways that judges, lawyers, and litigants construct, shape, and use stories; evaluating why certain stories are problematic at trials; or analyzing the rhetoric of judicial opinions, to mention just a few particulars. But as a matter of general outlook, treating law as narrative and rhetoric means looking at fact more than rules, forms as much as substance, the language used as much as the idea expressed (indeed, the language used is seen as part of the idea expressed). —paul GewIrtð 1 Legal Storytelling I ammuch taken these days with a trend in legal scholarship that I believe has direct relevance to the themes we are developing in this book. We have been concerned with notions of good reasoning and good evidence. Legal academ- ics spend a good deal of time analyzing these concepts in the very specifc context of the law. Consider, for example, the defnition of legal reasoning put forward by Lief Carter: In a nutshell, legal reasoning describes how efec- tively an opinion’s blend of case facts, prior law, social background facts, andmoral values create a legal out- come that makes some plausible sense of the moral and empirical world we know. 2 Tis defnition of legal reasoning seems overly narrow. Certainly, understanding how to unpack and evaluate appellate court opinions is an import legal skill and deserving of care- ful scholarly attention (we did a bit of this in analyzing Justice Blackmun’s understanding of the death penalty and the Constitution). But as Carter certainly knows, appellate court judges are not the only legal reasoners. Trial lawyers 131