7. INJURY AS MELODRAMA

DOIhttps://doi.org/10.1016/S1059-4337(04)34007-X
Publication Date30 December 2004
Pages155-177
AuthorSamantha Hardy
7. INJURY AS MELODRAMA
Samantha Hardy
INTRODUCTION
Our legal system has a well-established set of laws and procedures for injured
people to seek redress for their injuries. Over the years universalised legal
injury narratives have developed. In other words, repeated applications of the
law have generated standard, abstract, generalised versions of individual injury
narratives. Accordingly,from any particular injury narrative, there can be distilled
an “essential or abstract” legal injury narrative which is the same universal
narrative that can be distilled from other like cases (Klinck, 1992). It seems likely
that there are different versions of the legalinjury narrative that have developed due
to an accumulation of a large number of similar cases. For example, there is likely
to be a version of the legal injury narrative for injuries arising out of each of motor
vehicle accidents, workplace incidents, occupier’s liability, medical malpractice
or defective products. However, this paper will demonstrate that underlying all
of these versions is the generic legal injury narrative with particular and common
characteristics.Thispaperdevelopsthe idea of the universal “legal injury narrative”
– that is, a legally idealised narrative about injury, based on a number of implicit
rulesaboutthewayinjuries occur and their consequences. The legal injury narrative
is the framework by which other injury narratives are judged.
I should note here that there is a difference between what makes a narrative
legally acceptable and what makes it “true.” The universal legal injury narrative
may not necessarily correspond with any objectively identifiable “truth.”Theories
of truth tend to fall into two categories: correspondence theories of truth and
coherence theories of truth. A correspondence theory of truth assumes that events
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 155–177
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34007-X
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156 SAMANTHA HARDY
and states of affairs occur and havean existence independent of human observation
and that true statements are those which correspond with these facts (Jackson,
1990). In contrast, a coherence theory of truth proposes that a statement may be
construed to be true primarily on the basis of the overall narrative plausibility
of the story told, rather than a notion of correspondence with some external
reality.1In this paper I argue that any universal legal narrative is acceptable
based on its coherence rather than its correspondence with any pre-existing
truth.
Legal narratives reconstitute people’s stories of pain into a wider, more social
“realmofshared discourse” (Scarry,1985)andthepersonalinjury client is required
to submit their claim for compensation in terms of this wider narrative so that the
legal decision maker can understand and sympathise. The legal injury narrative
makes personal injury litigation more time efficient (certain aspects of the narrative
can be assumed) and also reinforces normative ideas about injury. However, it
is important to identify the characteristics of the legal injury narrative and, in
particular, what makes it “coherent,” so that we can examine it as a reference by
which other individual injury narratives are judged. If the legal injury narrative
is “significantly and qualitatively different” (Toombs, 1992) to the injury as it is
experienced and givenmeaning by the individual, there are potential consequences
affecting both litigants and society in general.
In this paper I suggest that what makes the legal injury narrative coherent is
its melodramatic form. After first considering the characteristics of melodrama
as a literary genre, I then examine how the legal injury narrative reflects the
melodramatic form. I apply and develop Feigenson’s definition of the accident
melodrama(Feigenson,1999/2000)and, using case transcripts and reports, identify
the melodramatic characteristics of the legal injury narrative. As a starting point,
I discuss the use of stock characters and roles, in particular the stereotyping of
plaintiff and defendant into “heroine” and “villain.” I then shift the focus to
the plaintiff, and in particular the characteristics of virtue required by the role.
I also consider the effect of a plaintiff’s gender and ethnicity on the representation
of virtue. The difficulty in communicating those virtuous characteristics is the
next topic of discussion. Finally the focus shifts back to the defendant and how
blame is assigned in the legal injury narrative. This leads into the discussion about
melodrama and morality.
I conclude by considering the possible ramifications of the melodramatic nature
of the legal injury narrative. In particular, I point out that the fundamental role of
a melodramatic narrative is the recognition of virtue. In the legal injury narrative,
virtue is embodied in the plaintiff and its characteristics are implicitly reinforced
by the requirements of the role. The two main questions that arise from this are
(1) How does the plaintiff “prove” her virtue; and (2) What are the consequences

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