Volume 19, Number 6
September 2002


TRIAL PRACTICE

STORYTELLING: THE ANECDOTAL ANTIDOTE

By Tom Galbraith

The law industry, like nature, abhors a vacuum. The hole created by the decline of apprenticeship is too gaping for it to ignore, and so it has created a variety of curative measures. What we do is hire specialists. Litigators increasingly employ doctors of psychology and focus groups to tell them how to talk to jurors. Our bar associations sponsor programs on trial presentation and encourage attendance with compulsory professional education requirements. For their most promising neophyte litigators, law firms invest in clinical training programs, such as those sponsored by the National Institute for Trial Advocacy.

I am in favor of all of these activities. But I suggest that lawyers should supplement them by trying something I did just to have fun-learn the art of storytelling. Storytelling is the art of selecting and presenting facts in a way that moves an audience. I am convinced that the benefits of storytelling go well beyond assisting lawyers in overcoming the isolation imposed on them by their training. Storytelling is an antidote to the harmful side effects of a law school education. It provides a completely different way of looking at a case that can restore much of the value the dissecting legal mind cuts away.

Entertain and enlighten. The unspoken assumptions of the storytelling class I took at a local college were that we all partake of the same humanity, we all have our own stories to tell about it, and our exchanges should be entertaining as well as enlightening. These ideas are expressed less prominently in trial practice workshops, if at all, but they offer many advantages, among them:

  • Storytelling is a good way to get in touch with real people.
  • Storytelling is play.
  • Storytelling breaks your dependence on the written word.
  • Storytelling teaches you to communicate effectively.
  • Storytelling helps you understand your own client and opposing witnesses.

If you participate in the exchange of stories, you will hear with your own ears what matters to and moves the people who may be your next jurors. This is not a connect-the-dots exercise but one requiring imagination and perspicacity about what people feel and do in everyday life. Storytelling teaches these valuable lessons:

  • Be entertaining, but also present evidence in an orderly fashion, with a story line jurors can easily follow and understand. Think about not only how witnesses fit into proving the elements of your case but also their role in telling your client's story. For each witness examination, as well as your opening and closing, tell a good story.
  • Be consistent. A story with a gaping hole in the plot line or a serious inconsistency is unsatisfying to its audience.
  • Use plot devices that will cause the jury to identify with your client.
  • Marshal factual details imaginatively.
  • Use evocative themes or images to anchor your story. A lawsuit can be about sour grapes or greener grass on the other side of the fence. Popular culture provides other shared norms and images that resonate. It is important, of course, to consider the uses your opponent might make of an analogy you are considering, and also to be sure it doesn't risk offending the jury.
  • Use refrains. Repetition is an important tool in making points stick, but inappropriate use of this device can bore or insult jurors. Good storytellers use repetition as a grounding point-a chorus.

Listening and understanding. A lawyer is a special kind of storyteller who tells someone else's story. To do this job properly, she must listen carefully and completely so that she absorbs not only the facts that invoke various legal theories but also those that will help her understand her client's story. All too often lawyers attempt to speed up client interviews by "cutting to the chase," which sometimes leads clients to perceive what we say as "guidance" about what the facts should or should not be. This tempts the client who wants to please the lawyer and help his case at the same time. In his eagerness to give the "right answer," the client may describe the cell phone message that he had meant to leave but did not, forgetting that cell phone billing records memorialize even local telephone calls.

We all have had the frustrating experience of having a client mention "something I forgot to tell you" or "a thing that could be important" just before trial or the client's deposition. I am not sure that these incidents are always the client's fault. Such embarrassments happen less frequently to lawyers who, like good storytellers, strive to understand fully the background and motivations of the people who inhabit their cases.

Another reason to learn your client's whole story relates to an instinct that may be primal in origin: People often feel a need to have their story told to experience a catharsis or closure. To us, a case may mean just trying to win another contest, but for the majority of clients, the events that give rise to a civil dispute are important parts of their lives. The client has a story to tell, and he will feel better about his lawyer and himself if he knows that the lawyer has understood and presented his story in human, as well as legal, terms.

Opposing parties present their own surprises. At deposition we learn that the executives whom our complaint accuses of engaging in a vicious scheme to commit diabolical acts are, instead, a collection of maladroit bumblers who could not successfully conspire to have breakfast together. At the next deposition, the sweet little old lady turns out to be a dominating shrew.

If a lawyer can learn enough about the character of the other side's witnesses, she can anticipate strange plot twists.

Success in litigation revolves around two questions: What is legally important, and what is emotionally persuasive? The difference is the difference between the head and the heart. Law school and, increasingly, apprenticeship instruct the head and ignore the heart. As an antidote, storytelling can teach you how to move an audience. Come back to the oldest art form.


Tom Galbraith practices with Meyer, Hendricks & Bivens, P.A., in Phoenix, Arizona.


This article is an abridged and edited version of one that originally appeared on page 17 of Litigation, Spring 2002 (28:3).

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