Walk the Line: Aristotle & The Ethics of Narrative

Abstract

Lawyers are storytellers who face tremendous pressure to persuade judges and juries of the rightness of their stories. Zealous advocacy has long been a touchstone in lawyering, but lawyers need to balance zealousness with candor to the tribunal. As narrative and storytelling have evolved in scholarship and practice as powerful tools for persuasion, lawyers can find themselves walking a delicate ethical line. The applicable Model Rules of Professional Conduct do not provide a sufficient framework for ensuring sufficient candor in the use of narrative, particularly when considering the cultural and psychological power inherent in stories. Thus, lawyers can find themselves sliding on a slippery slope into ethically actionable misrepresentation.

These are not new problems, and the classics have something to teach modern lawyers using narrative to persuade. Aristotle addressed the same types of concerns in his Nicomachean Ethics and On Rhetoric. Aristotle discussed the importance of keeping one’s conduct within the “mean”—to maintain a balanced approach to one’s life and practice. He also stressed the value of using good habits to develop a person’s character. Aristotle’s wisdom can guide a lawyer who seeks to be a candid, ethical, and still zealous advocate.

Thus, this Article posits that incorporating Aristotle’s concepts of virtue ethics into the Preamble of the Model Rules will provide guidance to lawyers seeking to use legal storytelling in an ethical, balanced way. Providing lawyers with intrinsic motivation to behave ethically provides a more workable framework than adding additional proscriptive requirements to the Model Rules, particularly for lawyers walking the line between truth and falsity when retelling client facts through storytelling.

Keywords: ABA Model Rules of Professional Conduct, virtue ethics, Aristotle, narrative, candor