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Criminal Justice Magazine
Winter 2005
Volume 19 Number 4

Criminal Justice Matters
Should Narrative Medicine Inspire Narrative Law?

By J. Vincent Aprile II

J. Vincent Aprile II, is a lawyer with Lynch, Cox, Gilman & Mahan, P.S.C., in Louisville, Kentucky, specializing in criminal law, both trial and appeal, employment law, and litigation. He recently retired after 30 years as a public defender from the Kentucky Department of Public Advocacy. He is a Council member of the Criminal Justice Section of the ABA and a current member, former chair, and contributing editor to Criminal Justice magazine.

Should Narrative Medicine Inspire Narrative Law?
Is your physician keeping a “parallel chart” on you in addition to your medical charts and records? Should you be alarmed by this practice or informed by it? Today medical doctors are being encouraged to write a “parallel chart” on each patient that requires the physician to listen carefully to the patient’s story of his or her illness or injury in its entirety and then later to put that story on paper in nontechnical language. Included in the “parallel chart” is the doctor’s capturing on paper of his or her own reactions and responsive feelings generated by this attention to both hearing the patient’s story and retelling it in written form.
Rita Charon, M.D., Ph.D., coined the phrases “parallel charts” and “narrative medicine” as she urged medical doctors to strive for narrative competence in their practice of medicine. “Narrative competence” is defined by Charon as “the competence that human beings use to absorb, interpret, and respond to stories.” (Rita Charon, Narrative Medicine: A Model for Empathy, Reflection, Profession, and Trust, 286 (No. 15), JAMA, 1897, 1897 (Oct. 17, 2001) [hereinafter Narrative Medicine, JAMA].) “This competence requires a combination of textual skills (identifying a story’s structure, adopting its multiple perspectives, recognizing metaphors and allusions), creative skills (imagining many interpretations, building curiosity, inventing multiple endings), and affective skills (tolerating uncertainty as a story unfolds, entering the story’s mood).” (Rita Charon, Narrative and Medicine, 350 (No. 9), NEW ENG. J. MED., 862, 862 (Feb. 26, 2004) [hereinafter Narrative Medicine, NEW ENG. J. MED.].)
Charon “has coached [her] medical students and colleagues in writing reflectively about their practices to more accurately understand what their patients go through and also what they themselves endure in the care of the sick.” (See LitSite Alaska, available at http://litsite.alaska.edu/healing/
medicine.html/.) Realizing that the patient’s hospital or office charts traditionally do not and should not contain crucial facets of a patient’s care, Charon recognized the need for “parallel charts” where medical students and doctors put aside medical jargon and write about their own worries and anxieties about the patient’s care, including their concerns about making mistakes, not knowing what to do, and failing the patient despite their best efforts. “A parallel chart is a personal notebook in which the doctor writes his or her own feelings about the patient—the ghost, as it were, of the patient’s actual medical chart.” (Melanie Thernstrom, The Writing Cure: Can Understanding Narrative Make You a Better Doctor? N.Y. TIMES MAG., April 18, 2004, at 45.) When doctors or students read to their colleagues the narratives in a patient’s “parallel chart,” both the reader and the listener feel less alone in the daily work of their mutual profession and more aware that their fears and anxieties as practitioners are not individual personal aberrations but inherent in the challenge of conscientiously providing medical treatment.
Educational programs in “narrative medicine” provide “rigorous training in reading literary texts to supply health professionals with the equipment to interpret and make sense of the stories of others.” (Narrative Medicine, NEW ENG. J. MED., supra, at 863.) In this way, doctors and medical students are trained in literary analysis and composition in much the same way as college or graduate students who concentrate in literature or creative writing.
The concept of narrative medicine as advocated by Rita Charon actually addresses four primary, complex narrative situations: (1) the physician and the patient; (2) the physician and himself/herself; (3) the physician and colleagues; and (4) the physician and society. The “narrative medicine” skills work equally well in each of these narrative situations, as the physician hears and comprehends the story being told and writes not only that story but the doctor’s personal reactions and responses to the story.
Undoubtedly this thumbnail sketch of “narrative medicine” is inadequate to describe the scope and effectiveness of “narrative competence” in the medical profession. However, this brief overview may be a catalyst to trigger an examination of the pragmatic application of “narrative competence” to the practice of law, specifically criminal law.
Many lawyers have consciously embraced what is sometimes labeled the “storytelling” methodology of litigation in which a premium is placed on extracting the universal story that is embedded in the client’s (or, for the prosecution, the victim’s or witness’s) explanation of what happened that thrust that person into the criminal justice system. For the defense that story becomes the theory of the defense—a story of innocence or reduced culpability. For the prosecution that story is the narrative of guilt and punishment.
Despite the litigator’s need to find the story of guilt or innocence, depending on his or her advocacy role, that dynamic does not ensure that prosecutors and defense counsel necessarily have “narrative competence” in the law in the same way that Charon applies that competence to medicine.
Too often the stories in litigation are forced on the defendant or the prosecution witnesses by lawyers who do not have “the competence that human beings use to absorb, interpret, and respond to stories.” Prosecutors and criminal defense counsel need to have the training and the desire to achieve “narrative competence” as they are exposed to the stories of clients, victims, and witnesses. In this regard, criminal justice litigators should consider the efficacy of maintaining “parallel litigation files,” where the lawyer writes his or her rendition of the person’s story complete with the lawyer’s responses and reactions to the narrative. Unlike a trial notebook, the “parallel file” would not contain strategic musings or evaluations about the case or the narrator. However, there is no doubt that maintaining a “parallel file” would result in better representation.
“When a doctor practices medicine with narrative competence, he or she can quickly and accurately hear and interpret what a patient tries to say.” (Narrative Medicine, NEW ENG. J. MED., supra, at 862.) The application of narrative competence by litigators in the criminal justice system should provide similar results. “The doctor who has narrative competence uses the time of a clinical interaction efficiently, wringing all possible medical knowledge from what a patient conveys about the experience of illness and how he or she conveys it.” (Id.) Defense counsel’s consultations with the defendant, particularly, and the prosecutor’s interviews with victims or witnesses would benefit in these same ways.
Lawyers, especially litigators, have as a substantial portion of their profession the use of the written word in motions, supporting memoranda, and trial and appellate briefs. This routine resort to the written word by litigators would appear to reveal a facility with narrative competence that inheres in the practice of law, in marked contrast to the cryptic hospital and office charts essential to the practice of medicine. Anyone who has perused motions, memoranda, and briefs in criminal proceedings will readily acknowledge that often they are bereft of any indication of the narrative skills that Charon has identified. Similarly, those same litigation documents frequently provide no clue as to an appreciation by the lawyer of the underlying narrative of the case, whether obtained from the defendant, the victim, or a key witness. A litgator’s reliance on the written word as a mode of professional communication is no indicator that litigators have narrative competence.
In the interest of efficiency, for example, criminal defense counsel often restrict the defendant’s attempt to tell counsel the entire story of his or her involvement in the charged offense. Rather than hearing the client’s entire narrative and attempting to analyze and understand it, defense counsel would rather interrupt the narrative and direct it to matters ostensibly more important to the litigator than those the client wants to reveal. This is the exact paradigm that frequently comes into play in the practice of medicine. A. Scott Pearson, an assistant professor in surgical oncology at the Vanderbilt Medical School, explains that doctors often “talk or interrupt patients to redirect them to what we think is important,” but, with narrative competence, doctors can “skillfully direct” patients to reveal “what is important to them.” (Clinton Colmenares, Stories We Could Tell: A Look Into Narrative Medicine, THE REPORTER, Vanderbilt Medical Center, April 23, 2004.) The problem of narrative incompetence appears prevalent in the practice of both law and medicine.
Narrative medicine recognizes that, without narrative competence, the patient might not tell the entire story, might not ask the most difficult questions, and might not feel heard. Under such circumstances, the medical diagnosis might be incomplete or erroneous, the prescribed treatment not followed, a second opinion sought, and the doctor-patient relationship strained or nonexistent. How similar is this to the adverse consequences of a lawyer’s narrative incompetence, particularly in the context of the attorney-client relationship? Yet, even for a prosecutor who lacks narrative competence, the results would be strikingly similar—inability to access the witness’s complete story, erroneous advice as to testifying on direct and cross-examination, unexpected trial testimony, and complaints about the prosecutor’s inadequate efforts. The problems of narrative incompetence experienced in the field of medicine strikingly mirror those occurring in the practice of law.
Yet another aspect of narrative medicine that has appeal for criminal law practitioners is the use of the “parallel chart” to capture on paper the doctor’s own emotional responses to the patient’s story. This self-reflective approach helps a doctor to practice medicine with an engaged concern, rather than a detached concern. For a litigator, this reflective technique forces counsel to identify and evaluate his or her own biases or aversions to the client and the narrative. Without such reflective practices, those underlying hostile or unsympathetic feelings toward the client or the story of innocence may only surface unexpectedly in the negotiation discussions or in the presentation of the case to the jury, when it is too late to take any significant corrective action. Using knowledge culled from narrative disciplines, the reflective lawyer can assess the client, the narrative, and his or her own self.
When doctors or medical students read to each other their retelling of their patients’ narratives, complete with their own reactions and introspections, the exchange is beneficial to both the author/reader and the listening colleagues. This practice would appear to have equal therapeutic value for criminal justice litigators. The ability of criminal defense attorneys to share with each other the client’s narrative, as retold in the lawyer’s written words, with honest self-reflection and personal critique, would reduce their own isolation and self-doubts as professionals fighting alone in individual cases against the government. Prosecutors engaged in this approach would hear their own individual worries and concerns generated by both successful and failed prosecutions voiced by colleagues who do the same daily work in the context of violence, dishonesty, and heavy caseloads.
Adherents of “narrative medicine” suggest that narrative competence “enables the physician to practice medicine with empathy, reflection, professionalism, and trustworthiness.” (Narrative Medicine, JAMA, supra, at 1897.) “Narrative law” should impact criminal justice litigators in much the same way.
In the past, particularly for those criminal defense lawyers who provided postconviction representation in death penalty cases and experienced the execution of their clients, public defender programs examined the concept of “compassion fatigue” and postulated practices to address this form of occupational burnout. Perhaps the regimen of “narrative law,” patterned after “narrative medicine,” can infuse narrative competence into criminal law practitioners to address “burnout” or “compassion fatigue” in a systemic way before it occurs, whether in death cases or traffic court. The apparent benefits of “narrative competence” to criminal justice litigators and to those to whom they must listen, whether clients, victims, or witnesses, indicate that “narrative law” should be given the same chance as “narrative medicine.”

 

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