To enhance your effectiveness in litigation, find and tell the nuanced human stories of your clients’ cases. That is the overarching observation from my 40-year legal career working on trial and appellate cases in state and federal courts. I participated in and watched hundreds of evidentiary hearings and bench and jury trials. I watched and listened while dedicated, experienced prosecutors and defense attorneys spoke to judges and each other about their cases, presented their evidence, and argued to the court and to juries. I observed judges rule and explain. More of what I know is based on reading and analyzing tens of thousands of pages of transcripts of trial court proceedings during years of appellate practice. I’ve seen what works brilliantly and elegantly; I’ve seen what fails spectacularly; and I’ve seen what, to use T.S. Eliot’s famous phrase, humiliatingly “ends not with a bang but a whimper.” I have been present when the entire courtroom was so engaged with the attorney’s oral presentation that you could have heard a pin drop when it ended. I’ve also been there when no one paid any attention to what the lawyer was saying and hardly noticed when the argument was over.
In every case, no matter its subject, a story exists to be told, and that storytelling might, in an unexpected and enriching way, even liven up your soul. The words “Zen” and “psychobabble” may have just sprung to mind, but let’s face it: Litigation practice, though fascinating, is a grinding way to make a living, and it could use a little fun.
Don’t get me wrong. Merely repeating a big stack of evidence in a client’s favor may win the case by pointing out that all the dry legal i’s are dotted and the t’s are crossed. But I have never known a powerful gut punch to happen in writing or aloud in court except when an attorney presented a compelling story. Without a story, you sure won’t have one of those pin-drop moments to remember when you’re rocking on the front porch of the old folks’ home.
All effective storytelling in litigation begins and ends in the same way. I can remember like an electric shock the first time I realized that the most convincing attorneys I came across each made an announcement that was more or less this: “This is what this case is about.”
The announcement is deceptively simple. However, the technical skill and effort you have to exert to live up to its promise is extraordinary. We all know what a self-destructive disaster it is to make a promise in court that you don’t keep. But if you pull it off, if your evidence and reasonable inferences match that promise, you will have given your listeners something concrete that sharply organizes their thoughts and holds their attention. We can only convince them of something when they are listening.
How does one actually go about telling the story of a case? By building on science and art.
On the one hand, the law’s technical science requires a story that does something precise. Your story is legally worthless if it doesn’t demonstrate to the jury, the judge, and your opponent that the evidence and reasonable inferences make out a legal claim or defense. Story or not, your client cannot succeed unless you fulfill that responsibility. Never take up litigation space assembling and presenting a story that doesn’t advance your case. You might as well not waste your written or oral breath. Stay home and think of something worthwhile to do.
Recognize that a legal theory and the case’s story are not the same; what your “case is about” is not the legal theory of the case. The legal theory is that your client acted in self-defense, and consequently the killing was justified; or that no breach of contract occurred. The case’s story—what it is about—is an omniscient observer’s overview displaying a suddenly focused spotlight on factual evidence, actors, events, and circumstances that reveal the big picture.
Applying more legal science, you have to gather the evidence you can make use of, confirm that it’s admissible in the form you will present it, and ensure that it does in fact get introduced. All this requires knowledge of the law and practical skills.
On the other hand, a successful litigation storyteller also must be an artist. I once read that painters see what there is to see differently than the rest of us do. That is what it is like to be a storyteller. Some people perceive a story being made and can describe it later colorfully and truthfully, while others don’t much notice what is going on right in front of them. Certain observers perceive that all of life is rolling out in a series of stories.
Even if you are not a naturally talented storyteller, you can train yourself to find the case’s story—a real and truthful narrative that you can put to work for your client. To find the story, convince yourself that every case does indeed have one. I’ll say it again: Standing on the threshold of a case, tell yourself that a story worth telling is embedded somewhere. You will succeed if you insist to yourself that it is there and that you can find it and use it to make the jury pay attention and believe.
Resolve, though, never to invent the story. Never concoct a story to suit your purposes. Never shove square pegs of evidence into round holes to construct an artificial, but convenient, narrative. The artificiality will be spotted. When you find the genuine story that may be playing hide-and-seek or just hiding in plain sight, you won’t need anything made-up.
Sometimes I’ve been lucky and the whole story of what the case was really about popped into my head when I wasn’t even consciously thinking about it. More often though, we can’t clearly see the story for what it is in the beginning. When the story has been hard to extract, I’ve had to go mining for ideas among hard-packed evidentiary rocks. Stir up your imagination and, like a good investigator, think about the story that otherwise disjointed bits and pieces can tell.
As you sift through the evidence, know first that the engrossing story you are hunting will always be a human story. Lifeless actors, like the elements of a claim for relief, are not engaging. A product liability case may turn on technical design and manufacturing flaws, but it’s blah for you and the jury without unique human actions and decisions. You’re not looking for just any and every human narrative, though. Many cases overflow with so much human commotion that telling the whole story cannot sharpen anyone’s focus. Cut through the distractions. You’re looking for a small human story that says everything.
Picture yourself talking at the kitchen table with smart, non-lawyer friends, describing what your case is about in nontechnical, ordinary language. Imagine their commonsense questions. What insights do they give you? Then really listen to your description. Disciplining yourself to engage in the mental exercise of teaching your friends the facts and law in simple, non-legal terms will reveal what your case is about. If you want to learn a subject, teach it.
Juxtapose two seemingly unrelated events and view them in the sequence of time. What happens? Are they really unrelated to each other, or does their juxtaposition allow a glimpse of the story you should tell? Similarly, throw the evidence’s puzzle pieces up into the air. What unexpected picture do the “disorganized” pieces make when they fall to the ground?
Imagine this: In your wrongful death case, you know that a college student and her father, driving home from the airport on Thanksgiving, were hit by a drunken driver while the mother and wife was at home preparing the holiday meal. When you put the collision and the meal preparation in a parallel timeline, it appears that at the exact moment the fatal collision killed her family, the woman was putting the turkey in the oven, setting the timer, and fondly recalling other happy Thanksgivings. When the timer went off, her whole world had changed irrevocably.
Question everything you think you know about your case. Ask yourself what is certain and established, what is unknown and unknowable. Will your story demonstrate to the jury that some things can remain unknown without defeating your theory of the case? Turn the case upside down and backwards and sideways, and look at it from every direction. What might someone else think after reviewing it? When you make your imagination aware of what alternative story the other side will see and deploy, new insights will be revealed.
Get yourself out of the story’s way. Remember that sometimes it’s difficult to really see what you’re looking at right in front of you. Have you ever sat talking with an old friend for 30 minutes before you noticed that he shaved off his beard?
Check whether you’ve identified the right story by asking yourself, “When I tell it, will the listener think, ‘I should have been able to see that for myself because it’s right there; those words are true, and they say what really happened’?”
The story may be one that can be stated in one short, pithy phrase, or it may require a longer narrative. Here’s an example of a two-word phrase that tells a whole story: Several years ago, when a Black teenager, Michael Brown, was shot dead by police in Ferguson, Missouri, a commentator said the police department had “criminalized poverty.” Two words told the story: that police entered certain poor neighborhoods and acted as though all the people present were criminals.
Other stories may take a few more words to construct. I remember an evidentiary hearing for a suppression motion in which the defense attorney asked police witnesses questions about the room in which his client was questioned before he confessed. He asked the police officers to describe how exceptionally small the room was and that the suspect was within arm’s reach of the two detectives at every moment; to admit that the heat had gone off in the building the night before and it was a cold January day; to admit that the officers noticed the defendant shivered and said he was cold more than once; to describe that the room had no windows and one of the officers leaned against the windowless room’s door during the entire interrogation. The defense attorney had caught hold of a story about that interrogation. He told the court that his client’s suppression motion was about overcoming his client’s will, “not by threats or violence but by means of a small, cold room.”
Don’t be intellectually lazy. The most powerful story may not be obvious and easy. When asked to speak words that would dedicate the cemetery at Gettysburg, Abraham Lincoln told the story that was fully knowable to everyone there, but it was not the obvious one that he had been asked to tell. Using words that have never been forgotten, Lincoln refused to dedicate the ground himself because, he said, it had already been made sacred by others’ actions. In a burst of insight, he told a different, human story that said everything: “[W]e cannot dedicate—we cannot consecrate—we cannot hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract.”
Be sure you find and tell the story the decision makers need to hear—this is what I believe is the most important lesson about storytelling’s value and about how to find the story. Like Lincoln’s, it may not be the obvious one, even if powerful evidence is in your client’s favor.
I learned that lesson years ago, when I prosecuted a rape case that I’ve never stopped thinking about. The prosecuting witness was a young woman in her twenties who accused her father of raping her. She testified that one afternoon when she was alone, he had come to her college dorm room with a gun, threatened to shoot her, and forced her to leave with him in his vehicle. They drove to an isolated place, and he raped her in the dirt at gunpoint. She told no one but her siblings at the time. No rape kit was created. No witness saw the father in the dormitory or on campus.
Later, after other events had occurred, my prosecuting witness reported the crime to police. When she did, she described years of sexual abuse by her father. Her siblings confirmed to investigators that she and they had been raped repeatedly since they were very young.
Though they were willing, the siblings largely were not permitted to testify in support of their sister. The judge had narrowly limited what could be introduced about the family history, finding that additional emotional, damaging testimony would deny the defendant the fundamental fairness guaranteed by due process.
At trial, the father took the stand and testified that no such thing had ever occurred—not the long years of repeated rapes, not the single incident at her college. While he testified, he was visibly outraged by the accusations. He was a respected member of his community. He presented character witnesses. The mother never testified, but throughout the trial, she sat in the front row, directly behind her husband.
Since opening statements, the defense had been hammering home that no one in the community had ever heard about the alleged decades of abuse, arguing that the father was being persecuted by his daughters’ malice. I knew that the evidence presented had ticked every box. It seemed all I would have to argue in closing was that the witness’s testimony, its extraordinary detail, and her sisters’ corroboration of a limited number of past events were overwhelming proof of his guilt. I went home to write my closing argument troubled, but not understanding precisely why.
Finally, at about three in the morning, I realized what was bothering me. Whereas the father had animatedly denied the allegations, the prosecuting witness had described the dreadful events without emotion. Her flat affect seemed likely to fall right into line with the defense theory that it had never happened. She spoke composedly, coldly, seemingly far removed from the events, and unlike any rape victim I had previously known. When she didn’t seem to care, how could I convince 12 people to believe her father was guilty?
I started thinking about my own daddy, who promised the little girl me that he would always keep me safe from the bogeyman. I thought about what it would have done to me if my daddy had been like my witness’s father, the bogeyman himself. I realized that the evidence of the victim’s cold affect and the family’s silence was not what made her unbelievable. Instead, it was exactly why she should be believed.
That’s what I argued the next morning. The story the jurors needed to hear was not an argument that summarized the damning, overwhelming evidence of every element of the crime. They had heard it all and weren’t likely to forget. Instead, what the jury needed to hear in closing argument was the story not yet told but embedded in the evidence—the story that explained why the daughter with fierce, stony eyes should be believed.
When the defense told the jurors they should question my prosecuting witness’s credibility because she was visibly emotionless, I argued that very evidence supported their believing every word the daughter had told them. I asked the jury to consider, when they questioned her believability, why the children would have spoken up or thought anyone would help them when the evidence was that their very own father had raped them again and again, while their mother stood by? Why would those children have told any other adult about the abuse when the adults who fed and clothed them did not protect them? I argued that the evidence supported that my witness had made herself very hard in order to survive those horrors. Precisely because the daughter spoke like someone whose heart had never known hope or any emotion, except the fear that she had conquered, her description of events was believable. The jury convicted him.
Our cases take hold of us. We live and breathe a case day and night while it’s in our lives, and sometimes for long afterwards. Instead of resisting the pull and telling myself to stop thinking about it, I learned to surrender and let the case wash around in my conscious and subconscious mind. If the case swirled enough, and I paid attention, I was rewarded with revelatory thoughts about what the case was really about.
Those are the stories we need to find and tell.
