Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions

Abstract

Part I of this article briefly reviews some of the foundational principles of narrative theory that are useful in studying the healthcare litigation. Part II sets the stage for the study by describing generally the broad reach of the litigation across the country. Part III takes a look at the trial briefs filed by the parties to the litigation to determine what story they attempted to tell. Although study focuses on the trial court briefs and decisions (because they are a larger data set), the article will occasionally refer to some of the Court of Appeals decisions that have come down as of this writing. I will not attempt to predict the outcome of the pending Supreme Court appeal, since my purpose here is only to examine how narrative may have influenced the trial court judges who had to decide different iterations of essentially the same case.

Part IV then examines the opinions in the major cases and describes how the cases were decided. Finally, Part V considers the possible role that the different narrative choices might have played in reaching different outcomes.

Keywords: narrative reasoning, foundational principles of narrative theory, storytelling scholarship, healthcare litigation, decision making process