Introduction: More than (just) words

Expressions do not mean; they are prompts for us to construct meanings.In no sense is the meaning of an utterance "right there in the words". (Turner 1991: 206)

Pragmatic thinking focuses not just on what 'is' there [.],but on how what 'is' there, 'got' there, and what it 'does' there.(Mey 2016: 1)

1 Courtroom narratives

It is accepted today that the role of language is not merely to provide logic-based representations of reality and the idea of "saying as doing" underlies much of contemporary linguistic thinking. Naturally, the ability to "do things with words" is invariably tied to an individual's social role and the sociocultural field within which the interaction is embedded, and the law is no exception. The juridical field, as argued by Bourdieu (1987),1 is a structured universe with its own norms, values and practices, and the site of a contest for control in determining the law (Bourdieu 1987: 817). The recognition of what has value and what does not, depends on the legal framing and is a field-specific construction. Any extra-legal action, system or thought is reconfigured within legal terminology and its status is not acknowledged unless it is legally validated (Leader 2008: 98). The courtroom thus becomes an arena within which legal rules transform less constrained relational accounts into more organised cause-and-effect descriptions, and where some voices are recognised, while others silenced or dismissed (Mertz and Yovel 2005). In the struggle over the status of truth, courtroom actors negotiate subjective meanings via communicative interaction; however, social structure and institutional constraints - or the juridical field's forces to use Bourdieu's (1987) terms - limit individual action and are a major determinant of the shape of the interaction.

A wealth of linguistic courtroom research has sought to explain the workings of courtroom interaction through the lens of narrative or narrativity. This aligns with the narrative turn in the social sciences - and the growing attention given to the narrative mode of synthesising human happenings - which sees narrative as the basic unit of meaning for understanding and explaining human action (Kaplan 2009). The underlying premise in this book, similarly, is that, despite its fragmentation and non-linearity, the trial process - with the adversarial procedure as a case in point - can be conceived as a distinctive type of narrative practice or storytelling.2 To support this claim, we can first point to the cognitive mechanisms responsible for discourse production and comprehension, and to their implications for how trial narratives are crafted and interpreted. For instance, in jury trials, when trying to understand "what happened", jurors integrate testimonies with their knowledge of the world and create "a congruent "whole"" (Luchjenbroers 1991: 87) in the form of a mental representation. In doing so, they rely on schemas, that is conceptual structures which represent knowledge and which enable them to call upon the generic concepts stored in their memory (Rumelhart et al. 1987: 18). They generalise across similar events, matching incoming information, whether linguistic or otherwise (e.g., visual stimuli), to the relevant schemas (Luchjenbroers 1991: 87). Attorneys, in turn, present the crime narrative "in a rigidly incremental form of small pieces of new information in a developing 'given' context" with a view to reducing the number of variables jurors have to process (Luchjenbroers 1991: 89). This construction of mutual ground facilitates jurors' comprehension as it "involves the placement of New (newsworthy) information in a context of Given (known) information", a process which can be considered within individual testimonies or across the whole trial (Luchjenbroers 1991: 97). Jurors thus construct the "facts" of the case by linking new input with what is already taken for granted (Luchjenbroers 1991: 89) and, based on the narrative they build, arrive at a decision about the defendant's guilt or innocence.

In a similar manner, we can invoke Pennington and Hastie's (1992) story model, informed by experimental psychology, which likewise argues that the story jurors construct determines their decision-making. Focusing on criminal trials, Pennington and Hastie posit that jurors do not consider the value of each piece of evidence, but "make sense of trial information by attempting to organize it into a coherent mental representation" (1992: 190).3 Faced with achronological, disconnected, and oftentimes conflicting testimonies, jurors make inferences and consider alternative decisions, each of which conveys a different degree of confidence. In accounting for this decision-making process, Pennington and Hastie (1992: 190-192) formulate four certainty principles: coverage, i.e., "the extent to which the story accounts for evidence presented at trial"; coherence, composed of consistency, completeness, and plausibility; uniqueness, i.e., a situation in which only one story is judged as coherent; and goodness-of-fit "between the accepted story and the best-match verdict category". These principles, they claim, determine which story will be accepted, which decision will be selected, and the degree of confidence associated with each particular decision.4

Further, it may be fruitful to consider Jerome Bruner's notion of narrative as a mode of thought which "operates as an instrument of mind in the construction of reality" (1991: 6).5 Here, analogously to Pennington and Hastie's (1992) approach, the focus lies not in narrative text composition or logico-scientific procedures, but in the ways we organise our experience and memory of human happenings (Bruner 1991: 4), and in how our narratives achieve "verisimilitude". The world does not "deliver reality", Bruner argues, rather, humans actively select and construct experience and knowledge, and this selectivity is guided by their culture (Bruner 2009 cited in Di Donato 2020: 16). In like manner, he contends that "[the] mind is never free of precommitment" and that "[t]here are instead hypotheses, versions, expected scenarios", which leads him to the conclusion that "any story one may tell about anything is better understood by considering other possible ways in which it can be told" (Bruner 2004 [1987]: 709). These claims are significant for understanding what transpires in court, where competing versions of reality are considered and scrutinised by the court and fact finders.

Taking Bruner's ideas a step further, Di Donato (2020: 3) underlines that knowing how narratives work in the law is essential given that they affect the establishment of what counts as truth or fact. She reiterates that the success of a legal narrative depends i.a. on the "verisimilitude, coherence, plausibility and probability of the story and the credibility of the narrator" (Di Donato 2020: 3). In addition to this, she points out that both "institutional facts" (e.g., age of majority, marriage) and "natural facts" (empirical events) are reconstructed ex post facto on the basis of alternative accounts which are mediated "by the normative, cultural and institutional context, by the roles played by the parties and by their emotions, perceptions, cultural backgrounds" (Di Donato 2020: 14). Echoing Bruner's position, Di Donato asserts that reality is a cultural construction emerging within communities whose members share common ground based on scripts, stereotypes and common sense, and that this construction produces categories with which individuals develop their awareness of reality and build group cohesion (2020: 20-21). Accordingly, category-based meaning construction takes place within social interactions and is affected by the community's shared meanings, shared concepts, and "shared modes of discourse for negotiating differences in meaning and interpretation" (Bruner 1990: 29).6

The above standpoint on meaning-making applies in obvious ways with regard to how legal narratives take shape and how legal meanings are established in judicial contexts. This is a bottom-up process, with ordinary individuals offering their interpretations of reality which are then "patterned, established, objectified" by way of institutional rules and principles such as those prescribed by the law and courts (Di Donato 2020: 33). What follows from this is that "[l]egal narratives [.] build a bridge between the initial reality, intended as cultural visions, and the 'possible' and 'alternative' social and cultural constructions", turning the law, "a system of forces", into "a system of meanings" (Di Donato 2020: 33). Approached from this angle, narratives are not to be seen as repositories of objective truths or universal categories, but rather as meanings which emerge in the course of legal practice (Sherwin 1992: 23). In the same vein,...