Legal Narrative and State of Mind

Cathren Koehlert-Page, Barry University School of Law, has published A Look Inside the Butler's Cupboard: How the External World Reveals Internal State of Mind in Legal Narratives at 69 N.Y.U. Ann. Surv. Am. L. 441 (2014). Here is the abstract. 

In Remains of the Day, Mr. Stevens the butler guards his pantry well and does not allow the housekeeper to be "coming and going." When Ms. Kenton intrudes on his private time and wants to see the novel he is reading, he resists. Mr. Stevens's internal monologue about the pantry and all of his interaction with Ms. Kenton reveal his state of mind. A reserved person, Mr. Stevens never comes out and says, "I have feelings for Ms. Kenton, but I am so afraid to let her in. She might wreak havoc on my heart." In fact, most of us are not so constantly self-aware of our emotional states. Thus, in story, the character's interaction with the external world reveals the internal state of mind. The pantry is Stevens' internal world -- it is his well-guarded heart.

In legal narratives, it is even more important to have some sort of concrete proof of internal states of mind. We must prove pain and suffering, emotional distress, intent, insanity, and so on. Simply asserted, "I am suffering," is not convincing and is conclusory. Worse still, the attorney could write, "Bethany was so very sad. She was suffering deep down to her core, and it pained her so." Such a declaration is melodramatic and conclusory.

However, if we view the manner in which Bethany interacts with the world as she suffers, we can feel the emotional weight of that suffering. The alarm goes off, and she turns it off and pulls the covers over her head. She lays in bed and cries all day long. She wants to drag herself to the kitchen to scarf down a pint of ice cream, but each time she tries to roll over, pain shoots down her back...and so on.

This article defines these objective correlatives, shows the difference between them and other writing concepts, and provides examples of effective and ineffective objective correlatives in both fiction narratives and legal narratives.
Some of the fiction works explored included Anna Karenina, Inexcusable, Hamlet, Bud Not Buddy, State of Wonder, and Every Time a Rainbow Dies.

The brief to the U.S. Supreme Court regarding the recent controversial death penalty case, Panetti v. Quarterman is also explored. Mr. Panetti argued that he was not competent to be executed, and his attorney's brief uses Panetti's incoherent connection to the external world to show his incompetent mental state.

Some of the other examples include U.S. v. Johnson and Davis v. Washington.

Download the article from SSRN at the link.