There's More to Law Than Just Storytelling

Tarpley Hitt, in her “I Read Court Documents for Fun. Hear Me Out” (The New York Times Magazine, December 1, 2020), says, “Trial lawyers are storytellers, and competitive ones at that. Each side accumulates details supporting their arc, explaining away those that don’t, editing along the strict stylization of law.” I suppose that’s one way of looking at it. Janet Malcolm takes the same view. In her great “Iphigenia in Forest Hills” (The New Yorker, May 3, 2010, she says, “If we understand that a trial is a contest between competing narratives, we can see the importance of the first appearance of the narrators.” Well, I don’t understand trials that way. For me, they’re contests of competing arguments. Trial lawyers are arguers. They argue evidence. They argue issues. They argue law. Yes, facts are important in a trial case. And yes, facts are often packaged in a narrative – I’ll concede that much. But the most thrilling cases, for me, at least, are the ones in which facts fall away, and the case becomes a contest between competing interpretations of the law. 

One such case that comes immediately to mind is R. v. Laviolette, [1987] 2 S.C.R. 667, in which a priest was clubbed to death in his parish home. Three men were charged. One of them, Stephen Laviolette, pleaded guilty. The other two were tried for constructive murder. Under the doctrine of constructive murder, a person who doesn’t actually commit murder, but who is involved in a crime (e.g., break-and-enter) that results in murder, can be convicted of it. It’s a highly controversial concept because it means that a person can be found guilty of murder even though he or she didn’t intend it. 

I represented the younger of the two accused, Brian Laviolette, who was only about seventeen at the time, if I remember correctly. Brian hadn’t entered the parish house that night. Stephen was the only one of the three who entered. He broke a window at the back of the property and climbed inside. As soon as he was in, he turned, pointed outside to a length of iron pipe on the ground, and told Brian to pass it to him. Brian did so, not knowing he was handing Stephen the murder weapon.

Brian was convicted at trial under the doctrine of constructive murder. Between his trial and his appeal, Parliament enacted the Canadian Charter of Rights and Freedoms. At Brian’s appeal, I argued that constructive murder violated Charter section 7, which guarantees an accused’s right not to be deprived of his freedom except in accordance with the principles of fundamental justice. One of those principles of fundamental justice, I submitted, was that a person should only be convicted of murder if he or she had the intent to do so. The Prince Edward Island Court of Appeal rejected my argument. We appealed to the Supreme Court of Canada, and on December 3, 1987, the Court struck down constructive murder. 

I mention all this to show how a case based on the most grisly facts can become a vehicle for an exhilarating argument of pure law. In a sense, transforming the lead of facts into the pure gold of constitutional argument is a form of decontextualization, a process that Malcolm herself writes about in her wonderful essay “Burdock” (The New York Review of Books, August 14, 2008). Someday I’ll write more about the analogous relationship between legal process and the art of decontextualizing. But for now, suffice it to say, there’s more to law than storytelling. That may be the least of its ingredients.