United States: Practical Rhetoric – Pleading & Plausibility

Last Updated: October 14 2015
Article by Andrew J. Trask

There's lots of recent scholarship complaining about how pleading standards have gotten too stringent.  Professor Anne Ralph of Ohio State University Law School believes she's found a solution.  In her article in the Yale Journal of Law & HumanitiesNot the Same Old Story: Using Narrative Theory to Understand and Overcome the Plausibility Pleading Standard, she outlines how plaintiffs might use the principles of narrative theory to meet the Twombly/Iqbal "plausibility" standard.

So, what exactly is "narrative theory"?  As Professor Ralph explains it:

Narrative theory answers the complex question of why narratives are persuasive. Narrative theory also seeks to explain the characteristics that every narrative possesses and how those characteristics function. The persuasive characteristics of narratives imbue narratives with plausibility. For this and numerous other reasons, narrative theory holds great promise for meeting the plausibility standard.

A narrative is, in short, a story.  Narrative theory studies not only the composition, but also the transmission and reception of stories.145 The concept of the "narrative transaction" focuses on the effect of the story on the audience, recognizing that, in understanding a story, "all . . . readers and listeners . . . have to work with is the presentation of events in the vehicle of narrative discourse."

(Internal footnote omitted.)

According to Professor Ralph, there are three aspects of a story that can make it persuasive: (1) narrative coherence (is the story internally coherent?); (2) narrative correspondence (does it fit with the audience's "stock stories" for dealing with the world?); and (3) narrative fidelity (does the story match the audience's common sense intuitions?).

How does that help the poor pleader?  Well, it gives some guidance as to what plausibility actually means.

Litigants can help move their claims across the line of plausibility by making better use of narrative techniques. Narrative techniques may be especially useful to a plaintiff who asserts a claim of illegal discrimination or another civil rights violation, as it is in these contexts that a judge's "judicial experience and common sense" may diverge most significantly from the litigant's allegations. In such instances, a litigant should consider the ways audience members (who may or may not share the same cultural background and stock stories) will "read" her allegations and should consider utilizing additional narrative techniques to demonstrate a claim's plausibility."

(Emphasis added.)  In other words, narrative theory can point one to the areas in the complaint where they can shore up its persuasiveness.  More specifically, Professor Ralph notes that more detail is almost always better than less.  (This intuition is backed up by a recent paper from Professor William Hubbard.)  But, in addition, drafters can ask themselves the following questions:

  • Is the story internally consistent?  As law students, we're taught that pleading in the alternative is just fine.  And it's true that, on its face, pleading in the alternative is not legal grounds for dismissal under Rule 12(b)(6).  But the less consistent the story plaintiff is telling, the less plausible it will seem.
  • Does this story look like the other stories in the caselaw?  "Stock stories" sound like either cliches or stereotypes.  But lawyers have another well of stories to draw from: the cases that form the common law in their area.  Read enough fraud cases, or enough product liability cases, and you begin to see common patterns that generate (and then reinforce) the legal elements of a claim or the findings of fact surrounding it.  The more the alleged details of a case match those stock stories, the stronger the complaint will be.
  • Does the story in the complaint match my common sense intuitions?   Plausibility also relies on the degree to which the complaint matches common sense.  But wait! say scholars like Arthur Miller, common sense isn't necessarily all that common.  And isn't that just handing way too much discretion to judges, who live in an elite bubble isolated from the common person?  Well, maybe.  Except for two things.  First, as Professor Ralph notes, we all have some common cultural ground.  For example, the vast majority of us grew up in the United States and were educated here, giving us a common culture from which to draw.  But there's more.  The vast majority of complaints are drafted by US-trained lawyers, who share a common education and a common set of norms with the judges who must find them plausible.  (And, let's be clear, judges rightly exhibit huge patience with pro se plaintiffs.)  So the cultural gulf is nowhere near as wide as critics would have you believe.  So long as the plaintiffs' lawyer can frame the story in a way that makes sense to the court, it should be plausible.

More importantly, what does this mean for those of us who want to dismiss poorly-pled complaints?  Plenty.  Because this account of narrative theory also gives a method of attacking the complaint.

  • Look for logical inconsistencies in the plaintiffs' account.  (In a cash-grab class action, there are often quite a few.)  And don't be afraid to ask the kinds of questions our professors used to terrorize us with in law school.  Who benefits?  Do we expect a corporation to act against its economic interest?
  • Look for other moments that seem not to make sense.   How many coincidences or leaps of faith is the plaintiff asking us to accept?  How complicated is the alleged wrongdoing compared to the alleged benefit?  (We once convinced a judge to dismiss a meritless conspiracy claim by pointing out that it just didn't make sense for the defendant to engage in the level of individualized skullduggery alleged in exchange for a benefit of a few hundred dollars.)
  • Compare the complaint to the caselaw.  If the caselaw shows certain details are always present in these cases, and the complaint doesn't allege them, it is fair for the judge to draw the inference that they're not true in this case.  Does this penalize a plaintiff for choosing the wrong lawyer?  Possibly.  Of course, since most class-action plaintiffs are chosen by their lawyers instead of vice versa, it should be less of a concern.

In general, this is exactly the kind of article we need to see more of.  It takes a theory that gets tossed around a lot, and offers concrete, practical applications to real-world litigating.

[Disclosure: I know Professor Ralph, and have socialized with her on occasion.]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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