November 09, 2006

Ted, at Overlawyered, has already briefly linked to this excellent piece by Paul Horwitz on an instance of conveniently recollected testimony in Williams v. Philip Morris, the punitive-damages cigarette case. Horwitz's concluding passage, however, seemed too good not to quote in full:

...litigants, forcing the past through the gauntlet that any set of facts must traverse in order to state a successful legal claim, create a narrative that bears about the same resemblance to lived reality that a dressmaker's dummy does to a human being. One might feel much the same way about people's descriptions, in lawsuits, of their injuries. Not that one necessarily disbelieves that they have suffered injuries, but their descriptions of those injuries often sounds suspiciously as the injury fits juridical categories rather than lived experience. (Nor is this all about plaintiffs, of course; the narrative shaped on behalf of defendant employers in defense of their alleged conduct in job discrimination cases is also often stunningly other-worldly.)

If I were an alien from another planet, sent to report back on the nature of human existence, I think the last place I would look would be the law reports. The novels of Richard Russo, maybe. But law reports, never.