'Wishin and Hopin and Thinkin and Prayin, Plannin and Dreamin:' The Narrative Theor[ies] of Predatory Lending
40 Pages Posted: 4 Feb 2009 Last revised: 14 Jun 2010
Date Written: February 4, 2009
This is an article that uses a predatory lending case as a vehicle to examine the metaphor of the lawyer as storyteller. For many years and in many law reviews now, we have been reading and writing about the relationship between narrative and story and the law. I add my voice once again to this discussion by examining more closely this idea that as representors of clients, lawyers are constructors and tellers of stories. Specifically, I examine the process lawyers go through and the choices lawyers make in figuring out what stories to tell and how to tell them.
The metaphor of the lawyer as constructor and teller of stories leads us to make room for the possibility of a multiplicity of stories. This concept, which I call narrative theory, does not tell lawyers which stories to tell or how to tell them. Lawyers have to make those decisions on their own, dependent on a variety of factors, including the law, the facts and the client's goals.
In spite of that, however, current anti-poverty legal practice, as represented by the potential solutions available to people like Helen, tends to privilege one kind of story over all others: the story of the poor person as a victim in need of rescuing. Without reflection and intention, therefore, lawyers who represent poor people often fall back on a default narrative about their clients as victims in high-stakes, crisis-driven narratives that take place in the winner-take-all context of litigation. These narratives begin at the moment of crisis, and not at any time before. In addition, these narratives do not take the long view of these crises or their effects.
But it does not have to be that way. Looking through the lens of narrative theory, my paper constructs counter-stories about those who find themselves faced with home foreclosure: stories that envision the individual clients' broader context, and their agency within that context; stories that imagine the clients' ability to look and plan ahead. I perform this analysis by suggesting that Helen's situation presents lawyers with the opportunity to tell many different - competing, alternative, serial - but equally "good" stories. The choices about which of those stories to tell and how to tell them are complex and nuanced, and dependent on multiple variables that need to be weighed by both the lawyer and the client. To illustrate this point, I choose to tell two possible stories and examine the factors that go into such choices. These choices and the stories they result in teach us about the process of practicing law in a way that empowers our clients, and might result in a legal framework that makes room for the multiplicity of their stories.
The piece concludes by suggesting that a lawyering theory that is open to this multiplicity of stories - and does not privilege one among them - contributes to constructing lawyering models that empower all kinds of client narratives. This approach thus allows those who would otherwise assume victim roles in adversarial narratives to contribute in constructing narratives that do not necessarily involve them having to be rescued. And it helps lawyers see their power and responsibility to construct these stories collaboratively with their clients, and thus to move the law in a direction that recognizes them as something other than victims.
Keywords: predatory lending, subprime mortgage, narrative, client, lawyer, storytelling,
Suggested Citation: Suggested Citation