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October 20, 2017 Practice Points

Good Storytelling Can Improve Litigation Strategy

By Lisa A. Reppeto

Nearly every litigator has heard at some point in his or her career that the fact section is the most important section of a brief. But why? There are litigators who seem to have an instinctive ability to grab the attention of jurors, hold it, and lead them to verdict. How do they do that? The answer to both questions may be found, at least partially, in the power of storytelling.

In her book, Wired for Story, author Lisa Cron discusses the scientific basis for why storytelling has been an important part of human culture since the dawn of humankind. According to Cron, "We think in story. It's hardwired in our brain. It's how we make strategic sense of the otherwise overwhelming world around us." Ms. Cron points out that a story is not just a series of things that happen. Rather, a good story's essence is the impact of those events on its characters (particularly the emotional impact) and the communication of that impact.

Unlike novelists, attorneys must tell their clients' stories within the confines of the evidence. An early and thorough factual investigation is critical to the effective use of use of storytelling in litigation. The temptation to accept "good facts" at face value can be irresistible. Please, resist. There are few things worse than that nauseating feeling you get when a key fact in the case turns out to be demonstrably untrue. If this discovery happens late enough in the proceeding, recovery may be impossible. Be more thorough in investigating your client's version of the facts than you think the other side will be. Think critically about the story your client tells you, looking for logical inconsistencies and implausibility. Identifying and addressing these issues on the front end will greatly reduce the risk of a later implosion of your client's story when it is too late to fix.

Next, identify the legal theories that support your client's position considering the facts discovered in your investigation. These theories form the ultimate conclusions that you want the judge and jury to arrive at when they hear your client's story. Because storytelling plays on emotions, understanding the reasons underlying your legal theories can be very important. For example, a statute of limitation defense is pretty cut and dried. On its own, the defense can seem harsh, formulaic and inequitable. But the principle underlying statutes of limitations is fairness to the defendant in that it can be difficult, if not impossible, to mount a defense to a claim after the passage of time. When the underlying principle is highlighted, the defense takes on a more sympathetic and emotional appeal.

When the facts and conclusions are identified, developing the presentation of the story comes next. Even the most interesting events can be boring if poorly presented. The timeless fairytale of Goldilocks and the Three Bears would not likely have been told and retold to countless generations of children if presented without drama and tension: Once upon a time, a little girl encountered three bears and was frightened away from their home. The End. So what? The story survives as a cautionary tale because it provides relevant details that reveal Golidlocks's selfish character and faulty decision-making. It is satisfying because she suffers the natural consequences of her poor decisions by being frightened. A good story will provide sufficient detail to naturally lead to the desired conclusion and will exclude irrelevant details that do not.

From this point on, you can let the story can guide everything else. Written discovery can be propounded to confirm and flesh out the facts. Discovery responses can be drafted to highlight the facts important to the story. The story can be used to prepare witnesses for deposition and trial testimony. Experts can communicate their opinions within the story's framework. The story can be used in motions and other submissions to the court to persuade it of your client's position.

At trial, you can (and should) illustrate the story with demonstrative exhibits and let it provide the structure and themes for all your communications with the jury, from voir dire to closing arguments. The story can (and should) guide your order of proof and how you present the evidence to the jury by letting your client's story unfold through the testimony and evidence. The story can be used in cross examination to confirm key facts and motivations. You can also use it to highlight the opposing side's failure or inability to offer a satisfactory or plausible alternative story.

A good story can also be helpful in getting a case settled. Parties to litigation often can't (or won't) see the weaknesses in their own case or strength of their opponent's case. When this happens, settlement is usually impossible. A strong presentation of the story at a mediation or settlement conference can make the difference.

Good storytelling can provide a powerful tool to litigators in all phases of litigation. Putting in the necessary work on the front-end is well worth the effort.

Lisa A. Reppeto is a partner at Jones Walker LLP in Jackson, Mississippi.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).