Primacy of "Day-in-the-Life" Paratexts
The "dayinthelife" record most vividly tells the story of the ascendancy of paratexts over the unrecorded oral and printed word in legal transactions. Used primarily in personal injury and product liability cases, the dayinthe life paratext portrays the physical and psychological conditions of a tort victim as he or she appears to endure a day in a postaccident life. 185 The dayinthelife account attempts
to communicate the extent of injury by focusing on its ramifications in everyday liferoutine daily activities such as eating, dressing and undressing, and moving about, as well as regular medical care .... Because of the severity of the injuries depicted in these tapes, they are usually unpleasantsometimes emotionally drainingto view. 186
Ironically, because the dayinthelife paratext, as compared with oral and written testimony, brings a more complete as well as emotionally compelling view of the factfinders, some courts have treated it as more prejudicial than probative. 187 Defense attorneys enlist evidentiary rules such as Federal Rule of Evidence 403 188 to shut out the agonizing reality of personal injury, even when the portrayal is neither false nor staged. Imagine, for example, a wrongful death action brought against a snuff tobacco manufacturer by the family of a severely disfigured, postsurgical oral cancer victim who is now deceased. The heirs offer as evidence a dayinthelife paratext that shows the surgical removal of portions of the deceased's tongue, neck, and jaw, as well as his painful and shortlived existence. Imagine, finally, that a trial court allows the testimony of thirtyone of the plaintiff's witnesses and the introduction of 140 of the plaintiff's exhibits but refuses to admit the dayinthelife paratext. 189 In maintaining this position, the trial court would be interpreting the law to distance the textual truth of certain situations from their contextual reality. Although courts often routinely admit dayinthelife paratexts into evidence, 190 the hypothetical, demonstrates the propensity of traditional law to abstract reality to the point of sanitizing it.
