Negative Narrative: Reconsidering Client Portrayals

Abstract

The defendant in a murder case is a selfish, immature lout who cheated on his wife, the victim. Should the lawyer attempt to minimize the bad qualities of the client, unearth good qualities to balance out the bad, or something else? Lawyers are regularly advised to present positive portrayals of clients, on the theory that this will encourage decisionmakers to respond favorably to their client and allow the client to prevail. Much of the relevant literature, including trial manuals from a variety of common law jurisdictions, legal writing materials, and the literature of applied legal storytelling, recommends a narrative with a primarily positive story about the client, or assumes it.' The difficulty is that although this orientation may work for many cases, it ignores instances in which a negative client portrayal is the most persuasive approach. Legal practice includes cases demonstrating the use of negative client portrayals in a way distinctly at odds with the majority of texts on trial advocacy, a point explored using two cases studies on the negative continuum from common law jurisdictions in North America and Asia. In addition to unnecessarily limiting narrative options, the general preference for positive client portrayals may encourage unwarranted and potentially unethical departures from the evidence.