Appellate practitioners have but one goal: to convey our client’s position so that those reading our briefs see things the way we want them to. A panel of three well-honored and oft-published legal writers—practitioner and author M.C. Sungaila, appellate judge and mystery writer David Ellis, and legal writing professor and expert in the emerging discipline of Applied Legal Storytelling, Ken Chestek—expounded on storytelling as integral to effective written advocacy. Moderated by the Honorable Jane Bland of the Supreme Court of Texas, these talented writers shared their experience with storytelling in the legal realm.
Why does recasting legal writing as “storytelling” advance our client’s interests?
Good appellate writing, like a good story, makes us care about those involved, Sungaila, leader of the appellate-practice group at Buchalter and Ellis Island Medal of Honor recipient, explained. And that is, after all, the advocate’s goal—for the judge to care about your client and the challenge he faces. A court motivated to assist your client in overcoming his present circumstances will be more easily persuaded to apply the law to get him there.Facts, he emphasized, are all that matter—when the story is properly presented, the law is merely the means to achieve the “correct” outcome. The Honorable David Ellis, justice on the Illinois First District Appellate Court and author of several novels with James Patterson, said it this way: “Most cases are close calls and could conceivably go either way.” In short, “you want the court to want to rule for you.”
Stories resonate because we all experience our own lives as stories—we are protagonists working to overcome obstacles to reach our goals, Professor Chestek explained. When we frame our client’s situation accordingly, we communicate on a different level. As characters in their own stories, readers find commonality with people struggling within theirs. Thus, stories help us connect judges to our clients’ circumstances.
While fiction- and legal-writing aren’t perfect parallels—among other things, a brief-writer front-loads critical information, while the fiction writer builds suspense—all good writing contains elements of a good story. Good writing, fiction or appellate, “grabs people early” and “makes us care about the characters involved,” says Sungaila. Justice Ellis agreed. He noted that a judge may read a well-written brief in its entirety. Like a well-written book, a reader engrossed in a good story wants to see it through to the end.
Rethinking legal writing as storytelling promises better communication and thus advances our clients’ interests.
How does the appellate advocate tell the story?
So how can you best tell your client’s story? Like good fiction, a well-written brief moves the story along. Anything that does not move the story forward has to go, says Justice Ellis. “Given the choice between a good story and good writing, take the good story every time,” he said, citing Patterson. Good anything appears effortless, he continued: “Don’t let the words get in the way.”
Every case contains potentially three stories, said Professor Chestek—the story of the parties (what happened), the story of the law (is the law just or constitutional), and the story of the case (the procedure by which the case is decided).. In any given case, one side will likely emphasize one or the other. For example, in a criminal matter, the prosecutor wants to tell the parties’ stories, recounting the defendant’s abhorrent conduct and its impact on the undeserving victim. Defense counsel might focus instead on procedure, emphasizing overreach or an authority’s mistreatment of the defendant, casting the defendant as a victim, or on the law, nitpicking elements to overturn a conviction. For this reason, Sungaila encouraged practitioners to tell their client’s story, rather than feel constrained by the opposing party’s framing of the case. In short, the other side’s story might not be the one you need to tell, even in your own words.
Justice Ellis agreed, but cautioned parties to at least acknowledge any disconnect: “You can say ‘this case is about ‘x,’ not ‘y,’ ’ and then tell me about ‘x,’” he said, “but failing to either join issue or explain why just creates more work for the judge.” And without a roadmap of the parties’ diverging positions, “you have no way of knowing where we might go.” Justice Bland agreed, noting that when parties write past each other, she tends to fall back on the court of appeals’ opinion. That might work in your favor as appellee; as appellant, it is obviously less advantageous.
But briefs as fiction?
"But, ‘storytelling’ evokes fiction, and briefs are supposed to be nonfiction, correct?” Justice Bland’s compelling question evoked laughter from the audience, most of whom either write or read “nonfiction” briefs for a living. All joking aside, the panel denounced any suggestion that a practitioner fabricate, or even stretch, the truth. But, the panelists agreed, the same facts can yield different, truthful stories—a good appellate writer simply knows which one to tell, and how to frame it to her client’s advantage.
Credibility with the court is “everything,” said Justice Ellis, so tell your story, but acknowledge your weaknesses. He recalled a case urging his court to find an abuse of discretion in an incidental trial ruling. The attorney acknowledged his difficult burden immediately, stating that “this was the one time in ten where the trial court’s ruling” exceeded its discretion, then explained why. And how should you handle a less-than-endearing client or unfortunate conduct while maintaining credibility? Be upfront about it. “A good protagonist is never perfect,” Professor Chestek explained. Good “characters” are just good people trying to overcome their flaws. In short, the “good guys” are not all good, and “bad guys” aren’t all bad.
Acknowledging and addressing weaknesses serves a strategic purpose as well—by taking the first opportunity to explain bad conduct—a client who admittedly lied to his boss to keep his job, for example—an advocate dulls the other side’s ability to frame the facts more advantageously. A good appellate writer, like a good novelist, tells a story to emphasize or deemphasize certain facts to serve her client’s purpose.
Application to judicial opinions
Appellate practitioners advocate, so characterizing briefs as “stories” is a manageable stretch. But what about judicial opinions? What, if anything, do storytelling techniques and themes offer appellate judges? More than you would think, said Justice Ellis. Courts publish opinions for a reason—to explain and justify their decisions, in part so that the public understands why the rule of law supports a particular decision. In a high-profile case attracting press coverage, the court’s narrative becomes even more critical.There, the U.S. Supreme Court upheld church members’ right to engage in wildly-unpopular speech that devastated the family of a soldier killed in action—picketing at military funerals—because our fundamental right to free speech was more important than curtailing even exceedingly hurtful conduct. In writing for the Court, Chief Justice Roberts explained:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this
Chief Justice Roberts’s observation was not essential to the outcome of the case, but it was critical to public perception of the Court’s judgment. Professor Chestek noted that courts’ power emanates from earned respect, which depends on public understanding. Explaining the “why” and the “how,” as the Court did here, is the essence of storytelling.
Legal writing is first and foremost, writing—utilizing words to communicate. By incorporating storytelling techniques and themes into legal writing, we can better convey our clients’ positions to courts, and do so in the manner mostly likely to persuade the court that our clients should prevail. It is our privilege to tell our clients’ stories, and our ambition to tell them well.