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February 22, 2019 Articles

Storytelling and the Law: Crafting a Compelling Narrative

Tell a story to grab the judges' attention, and listen to your computer read that story back to you before filing.

By Ariel Green

Facts are for trial courts. Reason and logic dictate success on appeal. Focus on the cold, unfeeling law, and you’ll prevail. Logos is the highest mode of persuasion. 

These myths pervade every aspect of appellate practice, even the standards of review. Thus, appellate courts review factual questions for “clear error” but afford no deference to a trial court’s answers to “legal” questions. And appellate judges are nothing more than unfeeling robots who methodically cut through the flames of passion with the cold steel of reason.

But do any of these apparently self-evident truths hold water?

Put simply, “[t]he law doesn’t matter a bit, except as it applies to a particular set of facts.” Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325, 330 (1992) (emphasis in original). Like King Solomon, judges across this country are on a quest, aided by legal prowess, to find justice amid messy factual disputes.

And our job as appellate lawyers is to present those messy facts in a compelling narrative that leads the court to conclude that ruling for our client is the just result. How do we do this? By telling a compelling story. This shouldn’t be too difficult because, after all, as Chief Justice John Roberts said in an interview with Bryan Garner, “[e]very lawsuit is a story.” 13 The Scribes Journal of Legal Writing 1, 16 (Bryan A. Garner et al. eds., 2010). 

The Story Behind Stories

But what is a story?

The American Heritage Dictionary of the English Language defines story as “[a] usually fictional prose or verse narrative intended to interest or amuse the hearer or reader; a tale.” Sounds like the last thing that should find its way into a brief, right? Wrong.

Our modern obsession with reason has led us to “mistake[] the feeling story gives us—that deliciously seductive pleasure—for its purpose.” Lisa Cron, Story Genius 12 (Ten Speed Press 2016). Pleasure, like all other feelings, is the body’s way of making us crave what we need for survival. Thus, we crave food because we need food. And we crave stories because we need stories. By making us feel, stories catapult our subconscious minds into the shoes of a protagonist so that we might learn how to not only survive difficult circumstances but also prosper in them. Thus, “feelings don’t just matter—they are what mattering means.” Daniel Gilbert, Stumbling on Happiness 78 (Vintage Books 2007) (italics in original).

If your brief is so dry, so full of legal jargon, so stuffed with high-minded principles divorced from any real facts that the only feeling an unfortunate judge has after reading it is a strong desire to shove her head in an oven, your client will prevail only if Lady Fortuna blesses you with an equally incompetent opposing counsel or a long-suffering law clerk who manages to look past your inability to persuade.

Thus, if we want to serve our clients, we must make it our business to learn the art of storytelling. And to do so, we must better understand what a story is, within the legal context. For our purposes, a story is about how your client made the best choice in the face of difficult circumstances when pursuing a specific goal. “[A] principle [that] very few lawyers seem to grasp is that there are no perfect cases, or very few indeed.” Kozinski, supra, at 330. This is especially true for appeals. Truth often appears on both sides of the aisle, and the victor “winds up being the case that is second-worst.” Id. Thus, to persuade the court that our clients most deserve justice, we must rely on storytelling principles to craft compelling narratives that account for all of the facts—including the bad ones—and place our clients’ choices in the best light.

Principles of Storytelling

What are the principles of storytelling? Like the principles of statutory interpretation, there are many. Too many to detail in one article. But there are three key principles that are necessary to create a compelling narrative.

First, above all else, we must “tell the truth.” Stephen King, On Writing: A Memoir of the Craft 157 (Scribner 2000). The last thing that any appellate lawyer should want to read in an opposing brief are phrases like the other side fails to acknowledge or the other side ignores. Why? Because courts apply the law to the facts. If we can’t acknowledge what the facts are, why should the court listen to anything that we have to say about how the law applies? So, tell the truth by acknowledging all of the relevant facts.

Second, frame everything around your client’s efforts to make the best choice under difficult circumstances. For example, suppose the federal government sued a company that manufactures encrypted cell phones, over the company’s refusal to break that encryption in the wake of a terrorist attack. If you represent the company, you might craft a narrative that focuses on the government’s attempt—using an ex parte proceeding in which the target does not even get to defend itself—to force the company’s engineers to hack security measures designed to protect the privacy of millions of Americans. And if you represent the government, you might craft a narrative that focuses on the long history of providing law enforcement access to telecommunications, even if encrypted, so that criminals—including terrorists—can’t use technology to hide from justice. Both narratives use legal principles to demonstrate why each protagonist’s choice was the best that could be made under difficult circumstances.

Third, keep your client’s specific goal in mind. Without a goal, how can you know which decision is best? In the example above, the goal of the company is to ensure the security of millions of Americans by protecting the privacy of their information. The goal of the government is to ensure the security of millions of Americans by ferreting out terrorists. Both goals are admirable, specific, and relevant. If you can identify a compelling goal that explains why your client’s decision was the best choice that could be made under the circumstances, then it is more likely that the court will agree that your client should prevail.


Say you’ve done all three things: you’ve crafted a brief that tells a truthful story about how your client made the best choice under difficult circumstances while pursuing a specific, admirable goal. What next? How can you check your work?

Given that our brains are wired to respond to stories, one trick is to listen to the story you’ve crafted. And I do mean “listen” in a literal sense. Just about every word-processing software tool has a “speak” function where the computer will read your words back to you in a horrible, monotone voice. If you can move past the lack of inflection, this tool will revolutionize your writing. Not only will you catch typographical errors that elude your eyes, you’ll also hear inconsistencies and problems in the narrative that you’ve crafted.

How Does the Story End?

As with all things, it is possible to take these storytelling tips to extremes. To be clear, nothing in this article is meant to endorse the approach taken by the lawyer who submitted a screenplay instead of a legal brief. Rather, the point of this article is to encourage everyone to advocate more effectively for their clients by telling compelling, truthful stories that draw on more than cold logic to persuade the court that their clients’ difficult choices were the best that could be made in the pursuit of an admirable goal.

Still have doubts? There is no better proof than experimentation. Give it a try. I expect that you’ll be more than satisfied with the results.

Ariel C. Green is a litigator at Munger, Tolles & Olson LLP in Los Angeles, California.

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