In this paper, three well-known scientific theories of legal narrative are summarized: Bennett and Feldman’s (1981) theory of legal storytelling, Pennington and Hastie’s (1986) story model of juror decision making, and Sunwolf’s (2006) decisional regret theory. Next, the use of legal narrative by participants in the Oregon Citizens’ Initiative Review (CIR), a public deliberation about ballot initiatives (Gastil & Knobloch, 2010) is described. Results of a content analysis of narratives observed in the transcripts of the 2010 CIR are presented. Finally, the suitability of the theories of Bennett and Feldman (1981), Pennington and Hastie (1986), and Sunwolf (2006) for explaining the use of narrative by CIR panelists is evaluated, and additional theories of narrative communication, which may shed light on significant aspects of CIR participants’ use of storytelling, are identified. See full text at http://ssrn.com/abstract=2079168

1. LEGAL NARRATIVE IN THE CITIZENS’ PANEL:
IDENTIFYING THEORIES TO EXPLAIN
STORYTELLING IN A SMALL GROUP
DELIBERATION ABOUT BALLOT INITIATIVES
Robert C. Richards, Jr.
The Pennsylvania State University
Department of Communication Arts & Sciences
Presentation at National Communication
Association, November, 2012

2. Overview
• Three Theories of Legal Narrative
• The Oregon Citizens’ Initiative Review
• Methodology
• Four Results
• Conclusion

3. Three Theories of Legal Narrative
• Bennett and Feldman’s Storytelling Theory
• Pennington and Hastie’s Story Model of Juror
Decision Making
• Sunwolf’s Decisional Regret Theory

4. The Oregon Citizens’ Initiative Review
• Public deliberation by a
random sample of 24
citizens on a ballot
initiative; analysis is
published in official
voters’ guide
• In 2010 two measures:
(1) Mandatory
Minimums, and
(2) Medical Marijuana
Dispensaries

5. Methodology
• Qualitative content analysis
• Original coding scheme
• Developed from prior study of government lawyers
• Limitations

6. Main Results
1. Narrative frequency
2. Counterfactual narratives
3. Policy effects as a narrative topic
4. Anticipated regret as a motivation for storytelling

7. 1. Citizens Use Narrative Frequently to
Discuss Legal Aspects of Ballot Measures
“…so I don’t see any reason why a person
couldn’t go in one day and buy some [medical
marijuana], go in the next day and buy some to
sell to his friends and I have seen no evidence
anywhere that any state has tried to prevent that
from happening”

8. Frequency of Appearance of Narrative Thought Units in
Transcripts of Citizens’ Deliberations During 2010
Oregon Citizens’ Initiative Review
Mandatory Minimums Medical Marijuana
Types of Number of Percentage Number of Percentage
Narrative Instances of All Instances of All
Thought Instances Instances
Units
All Types of 454 13% 1031 12%
Thought Units
Counterfactual 260 8% 827 10%
Thought Units
Co-Created 61 2% 152 2%
Thought Units
Responsive 23 1% 75% 1%
Thought Units
Note. Mandatory Minimums: n=3447. Medical Marijuana: n=8377. Instances are thought
units

9. 2. Counterfactual Narratives Make Up a
Large Share of All Narratives
• Speaker 1: “Because if you read it, it says you can be a
repeat offender if you get caught doing one thing, but they
file three charges on you, you're automatically a repeat
offender. So, in reality you've had one run-in with the
law, but –”
•
• Speaker 2: “But they really got mad at you.”
•
• Speaker 1: “But they got really mad at you and you can
be buried because of that one time.”

10. Frequency of Appearance of Narratives in Transcripts
of Citizens’ Deliberations During 2010 Oregon Citizens’
Initiative Review
Mandatory Minimums Medical Marijuana
Type of Number Percentage Number of Percentage
Narrative of of All Instances of All
Instances Instances Instances
All Types 72 100% 191 100%
Counterfactual 51 71% 148 77%
Co-Created 14 19% 25 13%
Responsive 4 6% 12 6%
Note. Mandatory Minimums: n=72. Medical Marijuana: n=191.
Instances are narratives

11. 3. Negative and Indirect Policy Effects Are
Major Topics of Narrative
“If you had six pounds of marijuana on you and you were
licensed to transport it from the grower to the
distributor, but you’re going down to Portland to sell it to
dealers on the street and they pull you over, you can say, I
have six pounds. How does the police know that it’s not
going where it’s supposed to go?”

12. Frequency of Appearance of Topical Codes in Narratives, in
Transcripts of Citizens’ Deliberations During 2010 Oregon
Citizens’ Initiative Review
Mandatory Minimums Medical Marijuana
Code Number of Percentage of Code Number of Percentage of
Instances All Instances Instances All Instances
Policy Effects 15 21% Facts 16 8%
(Indirect)
Fiscal Effects 8 11% Policy Effects 15 8%
(Negative
Consequences)
Policy Effects 8 11% Policy Issues 15 8%
(Negative
Consequences)
Note. Mandatory Minimums: n=72. Medical Marijuana: n=191. Instances are narratives

13. 4. Anticipated Regret Is Among the Most
Common Motivations for Narrative
• “I mean the treatment helps some people. And if they take
it away from this, which is this is where it comes from; the
first time offenders become repeat offenders because
there would be no treatment program for them”

14. Frequency of Appearance of Motivational Concepts in
Narratives, in Transcripts of Citizens’ Deliberations
During 2010 Oregon Citizens’ Initiative Review
Mandatory Minimums Medical Marijuana
Concept Number of % of All Concept Number of % of All
Instances Instances Instances Instances
Anticipated 23 32% Sharing 60 31%
Regret Information
Seeking 19 26% Anticipated 50 26%
Information Regret
Sharing 15 21% Evaluating 45 24%
Information Laws
Note. Mandatory Minimums: n=72. Medical Marijuana: n=191. Instances are narratives

15. Conclusion
• Sunwolf’s Decisional Regret Theory fits many (but not all)
of these narratives
• Within the Oregon CIR, the citizen-lawmaker has the
attributes of a realist
• The paucity of mentions of policy objectives in narratives
suggests that citizens may use different discursive modes
for different topics and functions
• We need to consider other theories or develop a new one

16. What’s Next?
• Validate the coding scheme and perform reliability tests
on coding of 2010 Oregon Citizens’ Initiative Review
transcripts
• Conduct a study applying Sunwolf’s Decisional Regret
Theory to narratives from the Oregon Citizens’ Initiative
Review
• Develop a theory that can account for all of the functions
of and motivations for narrative observable in the 2010
Oregon Citizens’ Initiative Review

17. References
• Archer, L. (2012). Evaluating experts: Understanding citizen assessments of technical
discourse. Paper presented at GPSSA 2012, the annual conference of the Great Plains
Society for the Study of Argumentation, Iowa State University, Ames, Iowa.
• Aronsson, K., & Nilholm, C. (1990). On memory and the collaborative construction and
deconstruction of custody case arguments. Human Communication Research, 17, 289-314.
• Aronsson, K., & Nilholm, C. (1992). Storytelling as collaborative reasoning: Co-narratives in
incest case accounts. In M. L. McLaughlin, M. J. Cody, & S. J. Read (Eds.), Explaining one’s
self to others: Reason-giving in a social context (pp. 245–260). Hillsdale, NJ: Lawrence
Erlbaum.
• Bennett, W. L. (1992). Legal fictions: Telling stories and doing justice. In M. L. McLaughlin, M.
J. Cody, & S. J. Read (Eds.), Explaining one’s self to others: Reason-giving in a social
context (pp. 149–165). Hillsdale, NJ: Lawrence Erlbaum.
• Bennett, W. L., & Feldman, M. S. (1981). Reconstructing reality in the courtroom: Justice and
judgement in American culture. New Brunswick, NJ: Rutgers University Press
• Binder, M., Boudreau, C., & Kousser, T. (2011). Shortcuts to deliberation? How cues reshape
the role of information in direct democracy voting. California Western Law Review, 48, 97-
128.
• Black, L. W. (2008). Deliberation, storytelling, and dialogic moments. Communication
Theory, 18, 93–116.

18. References (continued)
• Bormann, E., Cragan, J., & Shields, D. (2001). Three decades of
developing, grounding, and using symbolic convergence theory. Communication
Yearbook, 25, 271-313.
• Burke, K. (1969). A grammar of motives. Berkeley: University of California Press.
• Gastil, J. (2008). Political communication and deliberation. Los Angeles, CA:
SAGE.
• Gastil, J. (2011, January 31). Connecting small group deliberation with electoral
politics: An assessment of the 2010 Oregon Citizens' Initiative Review.
Presentation at the Annenberg Research Seminar, University of Southern
California, Annenberg School for Communication and Journalism.
• Gastil, J. (2011). Investigating the electoral impact and deliberation of the Oregon
Citizens’ Initiative Review. 2010 National Science Foundation Political Science
Program Awards. PS: Political Science & Politics, 44, 437-439.
• Gastil, J., & Knobloch, K. (2010). Evaluation report to the Oregon State
Legislature on the 2010 Oregon Citizens’ Initiative Review. Seattle: University of
Washington Department of Communication.
• Gastil, J., Knobloch, K., Reedy, J., Henkels, M., & Walsh, K. C. (2011). Hearing a
public voice in micro-level deliberation and macro-level politics: Assessing the
impact of the Citizens’ Initiative Review on the Oregon electorate. Paper
presented at the 2011 annual conference of the National Communication
Association, New Orleans, Louisiana.

19. References (continued)
• Gastil, J., Knobloch, K., & Richards, R. (2012). Vicarious deliberation: How the Oregon
Citizens’ Initiative Review influences deliberation in mass elections. Paper presented at the
15th biennial conference of the Rhetoric Society of America, Philadelphia, Pennsylvania.
• Gastil, J., & Richards, R. (2012). Making direct democracy deliberative through random
assemblies. Paper presented at the 2012 annual meeting of the American Sociological
Association, Denver, Colorado.
• Green, M. C., & Brock, T.C. (2000). The role of transportation in the persuasiveness of public
narratives. Journal of Personality and Social Psychology, 79, 701-721. doi: 10.1037//0022-
3514.79.5.701
• Ingham, S. (forthcoming). Disagreement and epistemic arguments for democracy. Politics,
Philosophy & Economics.
• Kissam, P. C. (1989). Law school examinations. Vanderbilt Law Review, 42, 433-504.
• Knobloch, K., Gastil, J., Reedy, J., & Walsh, K. C. (2011). Did they deliberate? Applying a
theoretical model of democratic deliberation to the Oregon Citizens’ Initiative Review. Paper
presented at the 2011 annual conference of the National Communication Association, New
Orleans, Louisiana.
• Knobloch, K., & Raabe, R. (2011). Exploring the effects of deliberative participation through
panelist self-reports. Paper presented at the 2011 annual conference of the National
Communication Association, New Orleans, Louisiana.

20. References (continued)
• Maynard, D. W. (1988). Narratives and narrative structure in plea bargaining. Law
& Society Review, 22, 449-482.
• Moses, M. S., & Farley, A. N. (2011). Are ballot initiatives a good way to make
education policy? The case of affirmative action. Educational Studies, 47, 260-
279. doi: 10.1080/00131946.2011.573607
• O’Barr, W. M., & Conley, J. M. (1985). Litigant satisfaction versus legal adequacy
in small claims court narratives. Law and Society Review, 19, 661-701.
• O’Barr, W. M., & Conley, J. M. (1988). Ideological dissonance in the American
legal system. Anthropological Linguistics, 30, 345-368
• Oregon Citizens’ Initiative Review (2010a). [Transcript] day 1 – week 1. Portland:
Health Democracy Oregon.
• Oregon Citizens’ Initiative Review (2010b). [Transcript] day 3 – week 1. Portland:
Health Democracy Oregon.
• Oregon Citizens’ Initiative Review (2010c). [Transcript] day 4 – week 1. Portland:
Health Democracy Oregon.
• Oregon Secretary of State. (2010). Voters’ pamphlet: Oregon general election,
November 2, 2010. Salem: Oregon Secretary of State.
• Pavitt, C. (2010). Alternative approaches to theorizing in communication science.
In C. R. Berger, M. E. Roloff, & D. R. Roskos-Ewoldsen (Eds.), The handbook of
communication science (2nd ed.) (pp. 37-54). Los Angeles, CA: Sage.

21. References (continued)
• Pennington, N., & Hastie, R. (1986). Evidence evaluation in complex decision making.
Journal of Personality and Social Psychology, 51, 242-258.
• Pennington, N., & Hastie, R. (1988). Explanation-based decision making: Effects of memory
structure on judgment. Journal of Experimental Psychology: Learning, Memory, and
Cognition, 3, 521-533.
• Pennington, N., & Hastie, R. (1991). A cognitive theory of juror decision making: The story
model. Cardozo Law Review, 13, 519-558.
• Pennington, N., & Hastie, R. (1992). Explaining the evidence: Tests of the story model for
juror decision making. Journal of Personality and Social Psychology, 62, 189-206.
• Richards, R. (2010, August 5). What do citizen lawmakers need to know? [Web log post]
Slaw.ca. Retrieved from http://www.slaw.ca/2010/08/05/what-do-citizen-lawmakers-need-to-
know/
• Ryfe, D. M. (2006). Narrative and deliberation in small group forums. Journal of Applied
Communication Research, 34, 72–93.
• Shulman, S. W. (2009). The case against mass e-mails: Perverse incentives and low quality
public participation in U.S. federal rulemaking. Policy & Internet, 1, 23-53. doi: 10.2202/1944-
2866.1010
• Sunwolf. (2006). Decisional regret theory. Communication Studies, 57, 107-134.
• Sunwolf. (2010). Counterfactual thinking in the jury room. Small Group Research, 41, 474-
494.
• Sunwolf, & Frey, L. R. (2001). Storytelling: The power of narrative communication. In W. P.
Robinson & H. Giles (Eds.), The New handbook of language and social psychology (pp. 119-
136). Chichester: John Wiley & Sons.

22. References (continued)
• Tal-Or, N., Boninger, D. S., Poran, A., & Gleicher, F.
(2004). Counterfactual thinking as a mechanism in
narrative persuasion. Human Communication
Research, 30, 301-328. doi: 10.1111/j.1468-
2958.2004.tb00734.x
• Wright, E. O. (2010). Envisioning real utopias. London:
Verso.

23. Acknowledgements
• Grateful thanks to:
• Professor Dr. John Gastil of The Pennsylvania State University
Department of Communication Arts & Sciences
• Katherine R. Knobloch of the University of Washington Department
of Communication
• Dr. Ekaterinia Loukianova of the Kettering Foundation
• David Brinker of The Pennsylvania State University Department of
Communication Arts & Sciences

24. Contact
• Robert C. Richards, Jr., JD, MSLIS, MA, BA
• PhD Candidate
• The Pennsylvania State University Department of Communication
Arts and Sciences
• Email: rcr5122@psu.edu
• Web: http://legalinformatics.wordpress.com/about/