Omniscient Narrative Modes in Law: From Trial Strategy to the Fellow-Servant Rule

Abstract

Research in law and literature often uses the term “narrative” as a shorthand for various kinds of motivated legal reasoning, indicating that facts, doctrines, and the relations among them have been chosen and arranged for a particular purpose. Alternatively, speaking of “narrative” may be a way of conveying that one is concerned with interpretation, and may be a signal that the discussion will focus on images, symbols, representations, or ideologies, even if their narrative features play little or no role in the analysis. This article shows how research on narrative might help to clarify aspects of trial strategy and legal doctrine. The first section considers omniscient narration as a way of understanding the effects of various defense strategies, in a criminal trial. The second section considers the role of omniscient narration in the development of the “fellow- servant” rule in the nineteenth century. The law of evidence provides an especially fruitful area for such investigations, but questions of narrative form and technique can help to clarify many other aspects of forensic argumentation and analysis, in both procedural and substantive contexts.

What does it mean to speak of narrative in law? Studying law in narrative terms has played an important role in a range of approaches to legal research, including work on law and literature, law and humanities, law and aesthetics, and critical legal studies (not to mention more recent areas such as law and affect, and law and emotion), yet there is little agreement, among scholars in these areas, as to what constitutes a narrative or what makes for a distinctively narrative approach to law. Often, the term “narrative” serves as a shorthand for the proposition that facts, doctrines, and the relations among them have been chosen and arranged for a particular purpose—that is, to show that the selection reflects a deliberate choice, such that a different designing hand could have produced a different result. Greta Olson, discussing this use of the term, notes that it points to “the constructedness of legal reasoning.” ¹ “Narrative” thus may stand in for a more detailed, but now familiar, demonstration that what has been presented as a natural, logical, or objectively compelled result is a construct that expresses the values of the judge (or the jury, parties, or lawyers). We might then associate this label with a range of critical approaches to the law, dedicated to exposing contingency, motivated reasoning, and false claims of value-neutrality. Formulating the point in terms of “narrative” expresses these familiar ideas in a different fashion, without necessarily relying on any narratological concepts or devices.

The concept of narrative is also bound up with a range of literary techniques that operate by showing instead of telling (or that do both). Someone who tells usually conveys the point explicitly; someone who shows leaves it up the reader to discern the point. The wealth of commentary on parables, for instance, testifies to their fascinating potential to sponsor a host of different interpretations without definitively pointing to any particular option. Accordingly, the term “narrative” can also serve as a promissory note of sorts, an indication that what follows will emphasize the vagaries of interpretation, again proposing that an outcome dependent on narrative is not preordained but is the result of choice, perspective, and values. In this way, announcing that one will take a narrative approach can be a signal that the discussion will focus on images, symbols, representations, or ideologies, even if their distinctively narrative features do not play a significant role in the analysis. Speaking of “narrative” may thus be a way of conveying that one is concerned with interpretation. The term seems appealing to scholars pursuing this kind of research because they take it to designate a certain disposition in their own work or in the materials they study: “narrative” marks that which begs to be interpreted, and by the law of transitivity, it appears to follow that one who attends to the contingencies of interpretation is studying narrative.

To be sure, “narrative” may play a more specific role in legal research. Scholars might be concerned with the narrative structure of a judicial opinion, or with features that differentiate the judge, as a narrator, from the usual means by which judges locate themselves in relation to their presentation of facts and doctrines. ² The term might signal an interest in narrative practices as such—not the constructedness of the result, but the use of particular techniques that figure prominently in research on narrative, as means of modulating point of view (e.g., first or third person), temporal ordering and experience (such as flashback and pacing), and the representation of consciousness (like psycho-narration and, more generally, devices providing access to someone’s thoughts). For instance, judges usually present the factual material in a decision by using the past tense with a third-person perspective, while presenting the doctrinal material in the present tense, conjoined, at least occasionally, with the first person to designate the judge’s own perspective. This contrast is so familiar as nearly to escape notice, but closer examination might lead to a better understanding of a range of narrative features, such as diegesis, deixis, tense, aspect, and agency in relation to the distinction between law and fact.

It remains striking that even the most basic concepts in the study of narrative rarely receive much attention in legal scholarship that begins by invoking the term. As Olson has observed, among scholars of law and literature, “ ‘Narrative’ has replaced ‘discourse’ as a mode for talking about what a text does,” but scholars rarely differentiate between “ ‘narration’ as the act of telling, and ‘narrative’ as the minimum collection of actors, world-likeness, and the relation of some kind of experience to create a story.” Olson adds that scholars in this area tend to use “narrative” for narratologically distinct concepts, such as the qualities that “inspire a cognitive response that works through understanding the world through stories,” “something [having the] prototypical qualities of being a narrative,” and the use of “storytelling techniques to make a topic more intelligible.” Moreover, work in this area often elides “other basic narratological distinctions, such as the division between the story and discourse levels of a text.

. . . ‘[S]tory’ describes the plot or what gets told; [whereas] ‘discourse’ denotes the how of the telling, including the narrative perspective in or outside of a given storyworld, the order within which events are told, and the style of the telling.” ³

As these observations suggest, many important concepts in the study of narrative remain largely unexplored in scholarship on law and literature. In what follows, I start by reconsidering one of the most familiar claims about law and narrative—namely, that the trial is an inherently narrative process. I explore this idea by expanding on some recent work by Susanna Lee and revisiting Ian Watt’s famous analogy between the novel-reader and the jury. The question of discourse—what Olson calls “the how of the telling”—plays an especially important role in this analysis. The second part of the essay turns to a historical example, the emergence of the “fellow-servant” rule in the nineteenth century, to consider what it might mean to examine this development in narrative terms. In both parts, I focus on the role of an appeal, implicit or explicit, to an omniscient narrative perspective. In this way, I hope to show that even a fairly basic issue in the study of narrative can help to clarify aspects of trial strategy and legal doctrine that are too often overlooked.

The term “omniscient” has been aptly challenged by critics in recent decades because of its imprecision in specifying the kind of narrative knowledge it conveys and its theological implications. However, as Paul Dawson observes, “The term omniscient narrator still persists in the wider scholarly community,” because none of the suggested alternatives successfully conveys the same sense of narrative freedom and access to others’ minds. ⁴ Speaking of “omniscient narrative” in law seems helpful not only because it indicates possible connections between legal and literary narrative techniques that have not received much attention, but also because it suggests a provocation, by identifying a kind of knowledge that most would regard with some skepticism when presented in court or in a legal decision. This is not to claim that evidence offered in court is incapable of revealing the details an omniscient narrator might know (such as a party’s motives or intentions), but only that the sources of a lawyer’s or judge’s knowledge need to be scrutinized in ways that do not necessarily apply to fictional works. Moreover, whereas novels usually adopt the same narrative mode throughout, or shift visibly from one perspective to another (e.g., by using multiple narrators), legal arguments sometimes drift into and out of an omniscient mode unobtrusively, and the challenge is to recognize that it has happened at all. If “law needs a narratology,” as Peter Brooks has suggested, ⁵ one fruitful direction would involve a comparison between legal and literary modes of knowing and telling.

I. Omniscient Modes in Criminal Trials

The trial offers a particularly inviting context for examining the law’s narrative dimensions, but commentators often content themselves with the point that litigants and their counsel seek to tell their own story in their own way, giving a partial and situated account that reflects their own perceptions and invites the audience (the judge, the jury) to adopt that version. Some scholars, however, have inquired more specifically into the questions of discourse that Olson mentions; here I consider two examples, from the work of Susanna Lee and Ian Watt.

Writing about the significance of narrative, emplotment, protagonism, and authorial invention in the trial, Lee observes that “the discourse of narrative and law has intertwined in criticism and literature for centuries: the prosecutor and defense attorneys become as authors, the defendant as character.” ⁶ The jurors also have a hand in this creative process, because they must “read an existing narrative . . . and use it to develop an ongoing narrative.” ⁷ Lee adds that in deciding whether to ascribe intent to someone charged with a crime, the jury decides on the defendant’s position in relation to the narrative: “In narrative terms, finding that there was intent (conscious intent to commit a criminal act, or mens rea), casts the accused as an author, and the crime as his work. Focusing on [the act] and finding that there was no intention, in the sense of criminal design, casts the accused as a character, and the crime as an element of a dynamic plot.” ⁸

Building on this account, we might ask how the various positions available to a defense lawyer may be associated with different narrative frameworks. Consider, for instance, a defense contending that the prosecution has targeted the wrong person. This approach corresponds to a story in which the defendant has been mistaken for a protagonist and in fact does not belong in the plot at all, or merits at best a minor role. In its most explicit form, such a defense recalls the theatrical practice of “breaking the fourth wall,” highlighting the fictional and fabricated nature of the enterprise by positing a character who protests that she has been scripted into the wrong play. An anxious prosecutor, intent on finding some culprit, any culprit, has acted out of haste and desperation to concoct a specious tale. In any number of courtroom films and novels, this is what the defense counsel tells jury, while gesturing directly at the script’s author.

Just as this strategy treats the prosecution’s story as a construct, it also raises questions about the narrative perspective that controls the jurors’ access to the story. The point does not simply entail a Rashomon-like lesson about differently placed tellers presenting different facts and interpretations. One of the most popular forms of “true crime” fiction in nineteenth-century Britain and America was the tale of the innocent defendant, charged with murder on the basis of circumstantial evidence and saved at the last moment by a surprise witness or a new and decisive piece of evidence. Such tales—which seem so gratingly crude to modern readers that anthologies of early crime fiction hardly ever reprint them—appeared by the scores in newspapers, magazines, and book anthologies. The denouement involves a shift from a situated perspective, focused on the witnesses whose limited knowledge and possibly inaccurate perceptions combine to incriminate an innocent person, to an omniscient or quasi-omniscient perspective that takes a wider view and refers not just to the exonerating evidence but to the circumstances that account for the mistake. Sometimes only by implication and sometimes expressly, the resolution tells not only the what but the how, and that latter aspect depends on knowledge outside the witnesses’ ken, knowledge about the witnesses and the setting that shows what misled them.

To be sure, a trial defense that takes this line does not automatically entail an analogous shift in perspective. However, insofar as the defense can propose a how, it acquires more persuasive force: instead of merely gainsaying the prosecution’s contentions, such a defense replaces one story with a broader and more informed one that has a better chance of prevailing because it claims to reflect superior narrative knowledge. Proposing that the prosecution and its witnesses have made an understandable mistake, and explaining how it came about, is more palatable for some jurors than complaining about a rush to judgment, because it avoids ascriptions of blame. ⁹ A defense that takes this form is also more compelling, because it offers jurors access to a fuller narrative perspective, gratifying their desire for knowledge by offering access to a view of the world that weaves the prosecution’s story into a larger and more comprehensive plot. In the most literal sense, it treats the prosecution’s account as a partial story and demotes that story to the status of an event within the storyworld instead of treating it as a competing account on the same narrative level as the defense story. Stanley Fish once observed that a successful interpretation of a work attempts to “enhance our appreciation” by discovering meaning in previously overlooked details; ¹⁰ by analogy, this defense strategy may prevail because it does not simply contradict the prosecution’s account but instead gives it meaning as part of the true explanation, recasting it as a form of evidence to be interpreted, an episode that forms part of a fuller narrative, which the defense counsel is now in a position to disclose.

A defense arguing that the accused was framed targets a different kind of authorial effort, by the prosecution or by the actual culprit, with a more visibly motivated kind of fabrication: the authorship of the crime and the authorship of the prosecution complement each other as belonging to the same order. Revealing them both as creative inventions is also a way of situating the accused as a deliberately invented protagonist rather than an accidental one. To that extent, exposing the accusation as a frame-up involves the same kind of shift in perspective described above, with even greater emphasis. The claim is no longer that the evidence happened to be misleading, but that someone carefully staged it to incriminate the defendant, and that an even more artful connoisseur of forensics spotted the maker’s hand. If a clever and unscrupulous malefactor can devise a convincing scheme to frame someone, then it takes real skill—both forensic and narrative—to expose that effort. Any defendant, of course, can grumble about having been framed, but the one who can offer proof of such an attempt stands a far greater chance of prevailing. A story that gives the framer a motive, and that specifies the signs of the maker’s work, produces the how with a vengeance. The story of a mistakenly accused suspect can be appealing insofar as it avoids casting aspersions on the witnesses; the story of a framed suspect, on the other hand, can be appealing (when there is evidence to support it) because it satisfies the human desire to see events as the result of intention instead of chance, to find a protagonist in the plot. ¹¹ Just as the jurors are invited to understand why one might mistakenly believe the accused is guilty, they are also invited to “enhance their appreciation” of that effect (to borrow Fish’s phrase again) by seeing it as the result of intentional design.

Again, the nineteenth-century “true crime” stories of innocent defendants help to illustrate the point. A much-reprinted tale in the genre, “The Blasted Tree” (1823), tells of a man charged with murder after he gives directions to a stranger on a winter night. ¹² The stranger vanishes, bones are found near the spot of their meeting, a doctor testifies that they form a perfect human skeleton, and the defendant is nearly convicted, only to be saved from hanging when the supposed victim, just back from a long trip, appears in the courtroom and volunteers to represent him. The “bones so mysteriously found,” it turns out, were planted by the doctor-cum-expert witness. We learn at the end that he “was a bitter enemy of the defendant” and had long kept them on display in his study—details not presented at the trial, but offered in closing to help the reader understand all the events. A narrator who can expose and explain the staged evidence has stepped out of the confines of the framer’s story, to offer evidence of a different order from the details we were being urged to rely on. One might say that we have moved from the prosecution’s case to the defense’s, but we have also moved from a limited perspective to a comprehensive one that recontextualizes all the evidence mentioned before.

Another defense strategy, and probably a more common one, acknowledges that the accused played a role in the events, but denies that he had the intent necessary to convict him of a crime (asserting, as Lee puts it, that “there was no intention [or insufficient intention], in the sense of criminal design”). ¹³ This approach serves to put the prosecution’s authorial efforts on a different footing: in effect, it contends that the prosecution has arrogated to itself a kind of narrative omniscience it cannot justify, claiming to have a mind-reading power that the defense can controvert. In fiction, an omniscient narrator may claim superior knowledge about any character, but in the courtroom, the defendant can try, at least, to refute any external observer’s claims about her thoughts and feelings. Because intentions are so hard to assess, and because a defendant has such powerful reasons for misrepresenting her thoughts, this kind of dispute typically entails a credibility contest that does not move beyond the Rashomon “conflict of interpretations.” ¹⁴ In some cases, the defendant who protests that she was framed can introduce highly probative external evidence instead of harping on supposedly conflicting details and insisting that someone who committed the crime would hardly have been so foolish as to leave behind the incriminating material that points to her. By comparison, such external evidence is almost never available in a dispute about criminal intent. ¹⁵ Accordingly, the defense that might seem at first blush to be the most productive for staging a contrast between limited and omniscient perspectives rarely produces that effect, and instead reduces to a conflict between two limited perspectives, pitting the defendant’s account of her intent against an external account of what someone else would perceive, usually involving an appeal to “common sense” or the “reasonable observer.” This supposedly objective standard is nevertheless a situated one, ascribed to a notional figure in the same diegetic space as the defendant.

Examining all three defense strategies in this way helps to show how and why an appeal to an omniscient perspective can shape the jurors’ perceptions, and also shows how such an appeal might fail. Another productive way of considering the trial’s narrative features comes from Ian Watt’s famous comparison between the jury and the reader of a novel, near the beginning of The Rise of the Novel. Watt likens the novelist’s techniques to

the procedures of another group of specialists in epistemology, the jury in a court of law. Their expectations and those of the novel reader coincide in many ways: both want to know “all the particulars” of a given case—the time and place of the occurrence; both must be satisfied as to the identities of the parties concerned, and will refuse to accept evidence about anyone called Sir Toby Belch or Mr. Badman . . . and they also expect the witness to tell the story “in his own words.” ¹⁶

Discussions of this passage typically focus on the way it aligns the jury’s quest for factual detail with the seemingly testimonial nature of novelistic description, as if the emphasis on time and place, in both contexts, reflects a curiosity about the particular situation, or perhaps a distrust that must be overcome by rendering the facts in high resolution—in short, as if the analogy hinges on an appetite for concrete and specific information as such, rather than pointing to a commonality in the reasons for seeking that information. This critical response makes sense, since Watt undersells the analogy. He makes a literary-historical point about the decline of allegorical figures, but his point has no corresponding application on the forensic side. The concrete setting that grounds every trial ensures that no conceivable version of a Mr. Badman could possibly give evidence in court or be the subject of a witness’s testimony, ¹⁷ and accordingly, there is no emerging “refusal to accept evidence” about or from such a figure in the eighteenth-century courtroom. The question is not what a jury might want or expect, as Watt’s analogy proposes; jurors would never be in a position to consider accepting such evidence, because of the inherently particularized nature of any dispute that might come before them.

However, the analogy takes on new force when the practice of cross-examination provides the context. In that setting, the concrete details are significant not only because they inform what Barthes called the “reality effect,” but also because they inform our perceptions of plausibility, consistency, and coherence—the grounds on which juries gauge the accuracy of a witness’s testimony. ¹⁸ To persuade a distrustful novel reader, it would not be sufficient simply to replace an allegorical figure with a particularized one, or to quote the character’s own words directly instead of approximating them, because the result must also satisfy the reader’s beliefs about likelihood. Particular details are required to satisfy that demand, but are not necessarily sufficient. It’s one thing to take pleasure in a highly circumstantial description of a drawing room, coach, or watch; it’s another thing to contemplate those details while asking whether they are consistent with our experience of individuals such as the character whom we have been observing for the last three chapters and who is now said to be the owner.

Jurors demand specific details, and wish to hear the witness’s own version of the events, because that information makes it possible to scrutinize the story for accuracy. As a commentator observed during the Elizabeth Canning controversy in 1752, “If a lie is made circumstantial, with the names and descriptions of persons, places, dates, and other furniture, it will be plausible and gain immediate credit”—but at the risk of being exposed, because “every one of those circumstances, which at first gave [the lie] authority, may administer means of tracing, and discovering its falshood.” ¹⁹ A novelistic description is not open to this sort of disproof (except when it conflicts with the details given in another passage), but readers may nevertheless question its fit by consulting their own experience.

Watt almost certainly did not realize that during the span his book covers—the 1720s to the 1770s—the epistemology of the criminal trial was being transformed as defense lawyers were entering the fray and taking on new tasks. Most of the research on this aspect of the trial’s metamorphosis dates from the last forty years, and Watt, writing in the 1950s, probably assumed that cross-examination was already a familiar part of the trial process even in Defoe’s time. ²⁰ Yet these developments prove to have significant implications for the various narrative modes that inform Watt’s study. Considered in relation to the practice of courtroom questioning, the reader-juror analogy plays a substantially different role in third-person narratives as against those narrated in the first person. In Defoe’s novels, the protagonists tell their own stories, and although scenes and events are often rendered in ways that resemble witness testimony, it would require a significant amount of choreography before the results could be likened to the products of cross-examination. A first-person narrator who relates her perceptions might unwittingly disclose some flaws or inconsistencies (as scholars of Defoe rejoice in showing), but such a narrative cannot capture the slow reveal, emerging in the back-and-forth of witness interrogation, unless the story includes a dialogue that enacts that procedure. (Modern fiction sometimes creates similar effects when a character reflects on and queries her own conclusions, represented in free indirect discourse, but that technique was only haltingly being explored in Defoe’s time. ²¹ ) For the most part, readers of Defoe’s novels are left to evaluate the story’s consistency and plausibility without the aid of any figure, within or outside the plot, to inquire about the accuracy of particular details.

Samuel Richardson’s epistolary fiction, the next step in Watt’s analysis, features characters who make it a routine practice, in their letters, to query or challenge their correspondents’ factual assertions. These astute readers, wielding a magnifying glass and invoking personal experience, are forever studying and gainsaying their correspondents’ statements: was that really what she said? how did she say it? why do you think she said it? has she said anything like that before? is that consistent with her character? Henry Fielding’s narrator in Tom Jones is often seen as a judicial figure for precisely this reason. The third-person novel offers excellent opportunities for probing the evidence along the same lines as a lawyer conducting a cross-examination, and this comparison helps to show why Watt’s analogy has special purchase in Fielding’s case (and for other novels with a similarly obtrusive narrator), as against highly circumstantial fiction narrated in the first person. ²²

Just as different narrative modes in the novel allow for different kinds of readerly scrutiny of the evidence, cross-examination in the trial often strives to highlight the limited perspective of any particular witness by inquiring into her capacity and sources of knowledge, and exposing their weaknesses. As we have already seen, however, certain types of information can make a witness appear, if not exactly omniscient, then at least in command of details that place her testimony on a superior level, as compared to the other witnesses. More commonly, the lawyers on both sides will assemble the witnesses and conduct the cross-examination so as to create a sense of omniscience that arises from the combination of partial perspectives gleaned from the testimony. U.C. Knoepflmacher invokes this variant on Watt’s analogy, and offers a powerful critique, in an analysis of the “Preamble” to Wilkie Collins’s The Woman in White (1860). The novel’s chief narrator begins by claiming that the reader will encounter all the evidence in the same way that a juror would, in a trial: “[T]he story here presented will be told by more than one pen, as the story of an offence against the laws is told in Court by more than one witness—with the same object in both cases, to present the truth always in its most direct and most intelligible aspect.” ²³

In effect, Knoepflmacher notes, “the reader of the novel’s strands of narrative is . . . invited to preside as judge and juror; we are asked to sift and assess the depositions made by a series of witnesses.” ²⁴ As he shows, however, the analogy fails because trials include certain crucial narrative features that Collins’s novel lacks. Much of the information that would be presented at a trial’s outset is missing: the story plunges us “into the same time scheme” as the characters themselves. Like them, we are

wholly unaware of their future; for a long time we share their ignorance of the offense alluded to in the ‘Preamble’ and adopt their false surmises, their uncertainties, their surprise. We become engaged in the narrative, not as impartial and objective judges [or jurors] but as subjective participants in a mystery—a mystery based on the irrational suspicions of the same figure who has posed in the ‘Preamble” as a rational accuser before a rational court of law. ²⁵

In a trial, the jurors’ position might seem to resemble that of Collins’s characters and reader insofar as none can tell how the events will turn out, but the jurors, at least, know what the defendant is being charged with, and what alternative endings are up for debate. The jurors are invited at the outset to contemplate a limited set of outcomes and to view all the testimony and evidence in light of those possible results, whereas the reader is engaged in a much more open-ended and suspenseful exercise. ²⁶ Knoepflmacher’s critique therefore makes a point about the kind of narrative engagement that the trial elicits, in contrast to the novel. This is not to claim that a trial cannot be suspenseful; it is only to say that the nature of that suspense is qualified by the jurors’ awareness of the outcomes being proposed by the prosecution and defense.

Returning to Watt’s analogy, then, we may observe the narrative structure of the trial differs from that of most novels, which entertain and intrigue precisely because we do not know how they will end, or what outcomes are even likely. From the outset, the trial jury is confronted with a more limited storyworld, which can include only those details relevant to the charge against the defendant, and which includes a limited set of plot options. The jurors want to know “all the particulars” because the details will lead the way to one of those outcomes, whereas the particulars of a realistic novel can serve other functions and can lead in various unanticipated directions. The need for relevancy distinguishes the how and why of the trial narrative, and bears on the division between its story and discourse levels, in ways that constrain its development.

These limitations, however, do not mean that narrative concepts have no place in the trial, nor that the options are so restricted as to be pre-ordained. That is why a better understanding of narrative perspective can help to explain why some defense strategies succeed and others fail.

II. A Doctrine’s Implicit Narrative Mode

I turn now to a subtler but more pervasive narrative effect in the articulation and application of legal doctrine. Judges sometimes offer their views on legal doctrine merely as interpretations that need only satisfy a test of validity; however, they often present their views as demonstrably correct in a more objective sense. Further, even claims of validity may entail appeals to superior sources of knowledge that create an effect of omniscience. For instance, in a statement that jurists continued to repeat into the nineteenth century, Sir Edward Coke said that “our Booke Cases are the best proofes what the Law is” but are not law themselves. ²⁷ His point was that judges’ knowledge about the law exceeds what is reported in the cases, that judges have privileged access to sources of knowledge that qualify or contradict what appears in the cases. This kind of superior knowledge does not automatically equate with omniscience; it depends on how the judges disclose their knowledge. The convention, still prevalent in Blackstone’s era, of referring to judges as “oracles of the law” reinforces the sense that judicial wisdom may come from sources inaccessible to the rest of us, and may be expressed so enigmatically that no one else has any means of challenging it. ²⁸

Presenting oneself as having complete knowledge, however, amounts only to a stance of omniscience. Assertions about the judge’s knowledge rely on an omniscient mode only when the object of this knowledge would otherwise be outside the ken of normal human capacity. That is why interpretive claims, no matter how emphatically grounded in the judge’s authority, do not necessarily sound in an omniscient register. Doctrines that incorporate irrebuttable presumptions, on the other hand, derive a legal conclusion from a factual basis that in some cases may not even be open to dispute. For instance, if the factual record would flatly contradict the presumption, the premise and its legal conclusion implicitly assume an omniscient mode, because the judgment depends on information that none of the parties can access—information that displaces the facts available to the parties. Accordingly, it makes a significant difference whether a doctrine’s rationale is presented as reflecting a policy or as the result of an irrebuttable presumption. Policies are also grounded in facts and experience, but at least ostensibly, those grounds are open to dispute. More factual information might change the policy. An irrebuttable presumption takes the place of the facts, offering the conclusion not as a creature of policy but as the truth about events in the parties’ world.

If the omniscient perspective informs various evidentiary strategies in the trial, it also plays a crucial role in what is now a familiar style of legal reasoning that uses a rational-actor model to answer certain evidentiary questions. Because a rational (reasonable, typical) person would behave in a particular way, would respond to a given incentive, it follows that the parties in this case must have done so. My point is not such that rationales should be banished from judicial analysis, but that they are often invoked reflexively without sufficient attention to the work they are asked to perform, and that their use in the evidentiary context, in particular, often proves counterproductive.

A narratology of law that attends to such distinctions could help to show why it matters whether the rational actor is invoked as a theoretical construct (and is openly acknowledged as such) to justify a policy, or is used as figure who reveals the truth about the world—and about the parties. It is one thing to enlist the rational actor in formulating a policy that courts should advance even if the facts in a particular dispute might seem to vitiate the rationale. In that case, the parties’ evidence is irrelevant. It is another thing to rely on this model to substitute for the evidence a party might lead, allowing the court, in effect, to stipulate certain facts on behalf of a party. That approach treats the evidence as relevant, while taking it out of the parties’ hands. That approach also tilts towards an omniscient perspective in which the judge’s knowledge about human behavior in general, or about how people respond to a certain prompt, provides all the requisite information about the parties in a particular dispute.

A brief look at the origins of the “fellow-servant” rule can help to illustrate this point. The rule emerged in the mid-nineteenth century as a response to negligence claims in the industrial context. Formerly, a plaintiff could sue the employer for injuries suffered in the workplace. The “fellow-servant” rule changed the law: if the injury resulted from the actions of another employee, this was a risk that was deemed to have been factored into the employment contract, and the plaintiff therefore was not entitled to compensation. The doctrine is often traced to two American decisions: Murray v. South Carolina Railroad Co. (1841) and Farwell v. Boston & Worcester Railroad (1842). ²⁹ In Murray, the plaintiff was awarded $1500 at trial, but the appellate court reversed. As Chancellor David Johnson explained, “No prudent man would engage in any perilous employment, unless seduced by greater wages than he could earn in a pursuit unattended by any unusual danger.” ³⁰ In Farwell, Chief Justice Lemuel Shaw adopted the same logic:

The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjusted accordingly. ³¹

Where Johnson speaks of what all prudent men would do, Shaw resorts to the passive voice. Both rely on presumptions about how the labor market operates.

Some might say that since the decision incorporates policy-based reasoning, the result requires an evaluation of the policy’s rationale and it would be idle to look any further. Several generations of legal scholars have studied and criticized these opinions on policy grounds, showing that their assumptions about the market were unwarranted and examining the doctrine’s harmful and unjust effects. ³² Few, however, have focused on the means by which these two courts reached their conclusions. In Murray, Johnson invoked the “prudent man,” a variant on the reasonable person, which continues to play an essential role in contemporary law. ³³ However, Johnson did not use this figure in the way it typically operates in tort, as a standard for deciding whether someone’s failure to take prudent steps makes her liable for the injury that ensued. Instead, he used it as a heuristic device for thinking about how people typically behave. Nevertheless, the term seems to depend on the same mix of quasi-empirical and normative premises (though doubtless in a different ratio) that we usually encounter whenever courts speak of the reasonable or the prudent. It seems peculiar, however, to invoke a norm to make an empirical claim about how the labor market works, not as a means of imposing liability but as a way to describe the landscape in which an injury might arise. In that context, the norm is not being used to induce actors to behave in a certain way, and so one might as easily (and plausibly) say that “no prudent employer would pay a worker more than necessary.” When the term performs this kind of descriptive work, it takes the place of evidence that the parties might lead.

Shaw’s explanation operates the same way: “in legal presumption, the compensation is adjusted accordingly.” A legal presumption is not necessarily an irrebuttable presumption—for instance, the presumption of innocence is a presumption of law. Seemingly, however, Shaw expresses the point this way to mark it as irrebuttable. Assumption: people normally demand a higher wage for performing dangerous work. Inference: Farwell must have done so when he started working as an engineer. Result: Farwell is barred from introducing evidence to contradict the conclusion. What Shaw knows about Farwell is just what any judge knows about a party acting under conditions that are best understood by considering a rational actor. Shaw’s rationale proceeds from knowledge about human affairs that takes the place of empirical facts that would otherwise have to be introduced in evidence. Because it occupies the space of those facts, this information trumps any evidence the plaintiff might lead. It will do Farwell no good to protest that in his case, the weekly pay included no compensation for “any unusual danger.” Shaw looks on Farwell in the same way that a third-person narrator looks on the characters in a story—from an unassailable position of superior knowledge, unlike the reasonable observer, who arrived on the scene to opine on criminal intent in the previous section. Austen could arch an eyebrow when speaking about “a truth universally acknowledged,” but there is no irony to be discerned in the judicial universe exemplified by this type of reasoning.

The omniscient mode remains implicit because when offered in this way, the rationale does not appear to function in a narrative capacity at all. In fact, scholars have rarely considered that the analytical part of a decision might include any significant narrative features. ³⁴ Putting aside that larger question, however, we may observe that when judges incorporate evidentiary assumptions in their reasoning, the facts that motivate the conclusion amount to claims about the parties. Johnson’s remark, in fact (“No prudent man would engage in any perilous employment unless seduced by greater wages than he could earn in a pursuit unattended by any unusual danger”), seems eerily akin to Austen’s famous pronouncement at the start of Pride and Prejudice. Someone who read his statement out of context could be forgiven for taking it as the self-betraying utterance of a fictional judge whose lofty confidence about his knowledge of human affairs is being displayed to show how it shields him from any awareness of his misconceptions.

It should not surprise us to encounter these traces of narrative omniscience in judicial writing. Many of the rhetorical features that scholars have associated with legal decisions are also associated with fiction that adopts that mode—such as a “voice that works to appropriate all other voices” to its own ends, a “declarative tone” that “appropriates [and] molds” those voices into a “cohesive narrative,” and a disposition that combines “certitude, assertion, . . . and abstraction.” ³⁵ Robert Ferguson was examining judicial rhetoric when he listed these features, but they hint at a particular narrative position that enables the judge to speak in this way. To be sure, the omniscient perspective does not define the only possible narrative mode in judicial writing, but it plays an important and often overlooked role.

A narratology of law, which explores what Olson calls “the how of the telling,” might consider a range of issues that take us beyond the question of narrative mode. For instance, scholars have only barely begun to explore such matters as the temporal pace of legal explanation and the techniques for managing the narration of past and future in trials and in judicial writing, or the figuration, in legal analysis, of doctrines as acting on the world with the same kind of effort and purpose as human actors. Nevertheless, studying the omniscient mode offers a helpful place to start because its effects are pervasive in legal argument and analysis. Omniscience is paradigmatically the mode that serves both to make intention apparent to the reader and to complicate our perception of it. Given the importance that the law attributes to intentional states—including motives, aims, and desires—a better understanding of the legal devices and strategies for portraying these dispositions can provide a strong foundation for further research on the ways that narrative techniques influence our apprehension of legal actors, doctrines, and events.