Koehlert-Page on Breading Bad Facts: How Intriguing Contradictions in Fiction Can Teach Lawyers to Re-Envision Harmful Evidence

Cathren Koehlert-Page, Barry University School of Law, is publishing Breaking Bad Facts: How Intriguing Contradictions in Fiction Can Teach Lawyers to Re-Envision Harmful Evidence in volume 13 of Legal Communication & Rhetoric (JAWLD) (2016). Here is the abstract.

Walter White is the “nerdiest old dude” that Jesse Pinkman knows. His students ignore him, laugh at him, and make fun of him at his after school job at the car wash. His home décor and personal fashion could best be described as New American Pathetic. And yet by the end of the hit television series, Breaking Bad, White is a feared multi-million dollar drug lord known as Heisenberg. He has killed multiple foes. He has lied. He built an empire, and, despite being chased by the DEA, the cartels, and various other murdering sociopaths, he has still left money for his family. The contradiction seems enormous, and, yet, it draws us in. It creates curiosity and somehow not only remains believable but actually breathes a more realistic-seeming life into this fiction character. By viewing contradictions through this storytelling lens, lawyers faced with seemingly contradictory facts in a trial or an appellate case can craft a more realistic and ethical narrative. In so doing, they can create greater logical cohesion and underscore their theory of the case. Previous scholarship on harmful evidence focuses on the effects of disclosing harmful facts or focuses on techniques regarding disclosure. This article takes those ideas to the next level by re-envisioning this seemingly contradictory evidence to see it as an integral part of a coherent whole. This concept is new in legal skills but has roots in legal skills precedent. This article explores fiction works like Breaking Bad and the book Room and shows how aspects of those works appear in actual cases, such as the United States Supreme Court prison-overcrowding case, Brown v. Plata, the exoneration of Eddie Joe Lloyd, or the battered spouse case, Weiand v. State. In the end, if the client’s ultimate assertion is true, then the attorney cannot merely break those “bad” facts. The attorney can show those facts in a new light so that they are no longer harmful and are actually a part of the client’s story. This article aids judges grappling with story’s role in law or with issues in the examples, such as prison overcrowding or wrongful convictions, lawyers seeking to overcome harmful evidence, applied legal storytelling scholars, skills professors, law students, and even fiction writers or literary criticism scholars.

Download the article from SSRN at the link.