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Nothing but the Truth

Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth

Steven Lubet

Publication Year: 2001

Lubet's Nothing But The Truth presents a novel and engaging analysis of the role of storytelling in trial advocacy. The best lawyers are storytellers, he explains, who take the raw and disjointed observations of witnesses and transform them into coherent and persuasive narratives.

Critics of the adversary system, of course, have little patience for storytelling, regarding trial lawyers as flimflam artists who use sly means and cunning rhetoric to befuddle witnesses and bamboozle juries. Why not simply allow the witnesses to speak their minds, without the distorting influence of lawyers' stratagems and feints?

But Lubet demonstrates that the craft of lawyer storytelling is a legitimate technique for determining the truth andnot at all coincidentallyfor providing the best defense for the attorney's client. Storytelling accomplishes three important purposes at trial. It helps to establish a "theory of the case," which is a plausible and reasonable explanation of the underlying events, presented in the light most favorable to the attorney's client. Storytelling also develops the "trial theme," which is the lawyer's way of adding moral force to the desired outcome. Most importantly, storytelling provides a coherent "story frame," which organizes all of the events, transactions, and other surrounding facts into an easily understandable narrative context.

As with all powerful tools, storytelling may be misused to ill purposes. Therefore, as Lubet explains, lawyers do not have carte blanche to tell whatever stories they choose. It is a creative process to be sure, but every story must ultimately be based on "nothing but the truth." There is no room for lying.

On the other hand, it is obvious that trial lawyers never tell "the whole truth," since life and experience are boundless and therefore not fully describable. No lawyer or court of law can ever get at the whole truth, but the attorney who effectively employs the techniques of storytelling will do the best job of sorting out competing claims and facts, thereby helping the court arrive at a decision that serves the goals of accuracy and justice.

To illustrate the various challenges, benefits, and complexities of storytelling, Lubet elaborates the stories of six different trials. Some of the cases are real, including John Brown and Wyatt Earp, while some are fictional, including Atticus Finch and Liberty Valance. In each chapter, the emphasis is on the narrative itself, emphasizing the trial's rich context of facts and personalities. The overall conclusion, as Lubet puts it, is that "purposive storytelling provides a necessary dimension to our adversary system of justice."

Published by: NYU Press

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Contents

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pp. ix-

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Acknowledgments

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pp. xi-xii

I am grateful to the following people for their comments, advice, and other input...

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Introduction: Storytelling Lawyers

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pp. 1-10

The best trial lawyers are storytellers. They take the raw and disjointed observations of witnesses and transform them into coherent and persuasive narratives. They develop compelling theories and artful themes, all the better to advance a client’s cause, whatever it might happen to be...

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1. Biff and Me: Stories That Are Truer Than True

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pp. 11-26

Arriving an hour early for my morning flight out of O’Hare, I picked up my boarding pass and looked for a place to read. There were no available seats immediately adjacent to my gate, so I headed for the...

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2. Edgardo Mortara: Forbidden Truths

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pp. 27-50

On the evening of June 23, 1858, an officer of the papal police knocked urgently on the door of Signor Salomone Mortara, a Jewish merchant living in the Italian city of Bologna.Marshal Pietro Lucidi, accompanied by several other of the Pope’s carabinieri, demanded entry to the...

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3. John Brown: Political Truth and Consequences

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pp. 51-91

In order to understand and appreciate John Brown’s trial, we will need to look fairly closely at the events leading up to the attack on Harpers Ferry.4 Unsurprisingly, the conventional view—that John Brown was a wild-eyed fanatic pursuing a suicidal mission...

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4. Wyatt Earp: Truth and Context

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pp. 93-133

It is early afternoon on a fateful day—October 26, 1881–in the frontier town of Tombstone, Arizona. Four heavily armed men have decided to take the law into their own hands. Gamblers and possibly thieves, a notorious gunslinger among them, they are determined to take vengeance...

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5. Liberty Valance: Truth or Justice

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pp. 135-159

It all began on a westbound stagecoach.3 Ransome Stoddard, for reasons never disclosed, was headed for the tiny town of Shinbone, located somewhere “south of the Picketwire” on the very edge of civilization. Evidently fresh out of law school...

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6. Atticus Finch: Race, Class, Gender, and Truth

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pp. 161-182

In the unreconstructed Maycomb, Alabama, of the 1930s, Atticus Finch was willing to risk his social standing, professional reputation, and even his physical safety in order to defend a poor, black laborer falsely accused of raping a white woman. Serving for no fee, Atticus heard the call...

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7. Sheila McGough: The Impossibility of the Whole Truth

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pp. 183-198

Perhaps better than any other contemporary journalist, Janet Malcolm understands the highly nuanced art of trial advocacy,which she explores in fine detail in The Crime of Sheila McGough.2 She is able to convey, in surprisingly few words, the complex and sometimes paradoxical...

Index

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pp. 199-217

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About the Author

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pp. 219-

Steven Lubet is Professor of Law at Northwestern University, where he directs the award-winning Program on Advocacy...


E-ISBN-13: 9780814765029
E-ISBN-10: 0814765025
Print-ISBN-13: 9780814751732
Print-ISBN-10: 0814751733

Page Count: 232
Publication Year: 2001

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Subject Headings

  • Law -- United States.
  • Trial practice -- United States.
  • Truthfulness and falsehood.
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