How often have you heard these phrases? “Let me tell you a story.” “What’s the story here?” “That’s quite a tale!” “She’s sticking to her narrative.” “He’s spinning quite a yarn!” They attest to the importance of storytelling in our communications with one another.
At every stage of litigation, the art of the advocate is crafting a good story and telling it effectively so that the listener prefers your client’s story over that of your opponent. Virtually every argument you make in litigation can be reduced to a story. You miss opportunities to persuade a judge or jury to accept your client’s version of the facts when you fail to do so.
The story is the original form of human thought, as old as humankind. Throughout human existence, stories transmitted history, culture, beliefs, and knowledge from generation to generation, beginning with stories told around the primordial campfire. The story is a method of teaching (“let me tell you a story”) and a means of inquiry (“what’s the story here?”). Myths, parables, and fables are all examples of the story form. We are engulfed daily in stories: Television, movies, books, sermons, and songs tell us stories that reveal important principles and teach moral lessons.
The power of the story lies in its connection to human heuristics—the mental shortcuts we use daily to cope with our environment. The heuristics of representativeness, a mental shortcut used to estimate probabilities, and availability, a shortcut used to make decisions on emotional cues and familiar fact patterns, are readily accessed through stories.
A story elicits both emotional and intellectual engagement by the listener. We too often think of emotion and reason as separate from one another. But neuroscientists tell us that the human brain’s limbic system (the seat of emotional response) and neocortical system (the seat of logical thought) are wired together in the anterior and posterior cingulate cortices so that they work together. These two areas of the brain are in constant communication. When we tell a story, we speak to both the logical and emotional parts of the brain.
We remember stories. A story is a narrative that recounts a sequence of events in a memorable way. Unlike the recitation of a series of facts and figures that might flow over and run past a listener—even an attentive, motivated one—a story imprints on the memory. A compelling narrative provides handles for the listener’s short-term memory to grab and hold on to the information provided through the characters and plotline. We learn best from examples. The story form teaches by providing a tangible example, tapping into basic human thought patterns.
Imagine if we had to go through law school memorizing the rules of the cases without the stories. Long after our first-year torts class, many of us recall the facts of Palsgraf v. Long Island Railroad, but few of us can recite Justice Cardozo’s holding in the case. Imagine trying to understand math without example problems and simply working from theorems and rules. We learn and remember best when we have concrete illustrations that embed and demonstrate the underlying principles to be taught.
Using a story to present your client’s case has important side benefits. Your case presentation is more effective and natural. Litigation, particularly trials and arbitrations, are stressful enough without adding to the burden with a presentation method that might appeal to lawyers but that “real people” might find foreign or artificial. When you tell a story, you simply visualize; you don’t have to memorize. You largely free yourself from notes. You speak conversationally. You connect better with the listener. You become a more powerful communicator. Your job as an advocate becomes easier.
Moreover, you create space for the listener to enter into the narrative and make it the listener’s own. Henri J. W. Nouwen sagely observed in The Living Reminder: “One of the remarkable qualities of the story is that it creates space. We can dwell in a story, walk around, find our own place. The story confronts but does not oppress; the story inspires but does not manipulate. The story invites us to an encounter, a dialog, a mutual sharing.”
In the context of litigation, and particularly of trials, there are five key elements of an effective story: theme, characters, motives, plot, and conflict.
Theme. The theme is the principle at play in the story, the trope around which the argument is built. What do we do with this story? How are we to react? The concept of a theme should not be confused with your theory of the case—the legal framework on which the case rests, including causes of action and affirmative defenses.
The theme of a good story explores a timeless, universal idea. The theme should do the work of unifying the law and facts into a coherent whole. A case theme creates the lens through which the listener views and interprets your story. Nobel laureate and Pulitzer Prize winner John Steinbeck believed that there is only one story in the world, the story of mankind wrestling with its own desires and behaviors in a contest between good and evil. But there are endless variations on Steinbeck’s Manichean worldview from which the advocate may choose to frame an argument.
What does a case theme—as opposed to a case theory—sound like? In a commercial case involving the sale of a business or property and a suit for rescission, it could be a common saying that captures the argument you wish to make: “a deal’s a deal,” “a man’s word is his bond,” or “her handshake was her promise.” Or perhaps a Biblical reference: “When Esau sold his birthright to Jacob for a bowl of pottage, God refused to release Esau from his promise. Likewise, you should refuse to undo Ethan’s sale of his interest in the family sheep ranch to his brother Robert because he feels he sold too cheaply.”
An important caution, however: The theme you choose must match the audience. A good argument made to the wrong audience is a losing argument. The listener must be prepared to accept your story as the “truth.” As Thomas Kuhn had it in The Structure of Scientific Revolutions, “truth” is a function of the paradigm within which one works. This is not to say that there are no objective “truths.” If truth means correspondence with reality, then fidelity to the facts surely matters. But my point is a different one: The listeners’ attitudes, values, beliefs, and life experiences form the worldview or paradigm through which they assess your story and determine what to them is “true” or not.
A statement may be true in one paradigm and may be false in another. As an example, in physics the proposition that time passes at a constant rate is widely accepted as “true” in our world of Newtonian mechanics but would be open to dispute in Einstein’s world of relativity, where how fast time passes depends on how fast you’re traveling. All this is to say that you must pay attention to the audience you anticipate will be hearing and responding to your story. Craft your story with your intended audience in mind.
Characters. Stories have characters: the actors who do things, say things, and write things. The litigants and witnesses are the characters in your story. They make your story interesting. Who are they and why should we care? What do they do and how do they do it? How do we know what they did?
We want the listener (in a trial, the trier of fact) to care about our characters and identify with them. Humorist and master storyteller Garrison Keillor observed: “Characters are best seen at dog level.” We want the characters who are favorable to our story to pet the dog, feed the dog, smell good to the dog; and the characters who are unfavorable to be uninteresting to the dog or, better still, to anger the dog. We want our characters to be immediately understandable, accessible, and credible. Part of the hard work of the advocate in preparing a case, of course, is to determine which characters can tell the story in a credible manner and to prepare them to give effective testimony in a trial or arbitration.
Motives. The characters in our story have reasons for their actions. Motives interest judges and jurors, and almost always matter. Even when your legal theory of the case doesn’t contain a scienter, intent, or state-of-mind element, motive still matters. Why does this witness so vividly remember the exchange with the plaintiff and why is he willing to give testimony about it? What could the boss have been thinking when she decided to discharge the employee without cause? Why didn’t the company grasp that its product could be used for an alternative, dangerous purpose? Your characters’ motives should be woven into the description of their actions so that the listener fully understands what transpired.
We want judges and juries to accept our characters’ motives. We want the characters in our client’s story to be noble, if possible. If not noble, then appropriate and understandable under the circumstances. And if nothing else, at least the product of human frailty and therefore forgivable.
Plot. The plot is the sequence of events and the interplay of the characters. In a trial, the plot integrates the legal theory of the case with evidence, including witness testimony, documents, and demonstratives. In every case, you will be working with some variation of the typical litigation story arc: At first everything was just fine, then something bad happened, and now we have to remedy it.
The advocate is the architect of the plotline. The plot doesn’t have to flow chronologically. It can begin wherever you like. It can start at the very beginning and work forward in time. “In the beginning when God created the heavens and the earth, the earth was a formless void and darkness covered the face of the deep. . . .” Genesis 1:1–2. (Now there’s a plotline that really starts at the beginning!) Or it can start at the end and work backward. “And they all lived happily ever after,” but lots of things happened before that. Or you can start somewhere in the middle, work in either direction, cast a spotlight on an event or interchange that is central to your theme, then move to the cause or the effect. The Star Wars movies all begin with the same introductory line: “A long time ago in a galaxy far, far away. . . .” The audience is then immediately thrust into the heart of the action somewhere in the middle of the timeline. The variations for organizing your story’s plot are as limitless as your creativity and imagination.
In a product liability trial involving an airplane crash, I chose to begin my opening statement in the middle of the larger story arc of the case by telling a part of the story through the eyes of an eyewitness.
John Wortham was sitting in the cab of his Burlington Northern locomotive in the very early morning hours of February 8th two years ago. It was about 2:25 a.m. It was pitch dark. And it was very cold—about 20 degrees. Wortham was a train engineer. He’d stopped his train at a railroad crossing near Alliance out in the western part of the state. You see, it was so foggy he couldn’t see the caution signal that controlled the next block of track to let him know it was safe to proceed. So he was sitting there waiting for the train in front of him to call and give him the all clear to let him know it was safe to move forward in the fog. Suddenly, he felt a shock wave strong enough to rattle the air hoses on the engine. He grabbed his flashlight and climbed down from the train to investigate the cause. When he crossed the road near the tracks, he shined his flashlight into the snowy field next to the train. He could barely make out the outline of the tail of an airplane—about 100 yards away. This is a photo of what he saw. This case is about how that airplane came to rest in that field on a cold, dark, foggy morning two years ago.
Conflict. Conflict in a story involves a controversy and the resolution of that controversy. In litigation, the controversy is defined by the pleadings. The resolution sought is victory for your client. The resolution you desire must be supported by a claim for justice.
Judges and juries want to right wrongs. They want to respond to a plea for justice. They want to find for the party who has been injured or the party who has been hauled into court and improperly forced to defend himself. You must tell your audience the specific wrong to be righted. You must give the jury a moral basis founded in law for the action you wish them to take.
Within the limits of the causes of action and defenses involved in the legal controversy, you may choose the point of clash for your argument. Your story may agree in substance with the facts presented by the opponent but offer a legal reason why your client still prevails (e.g., a limitations period has run or an absolute immunity applies). Or your story may agree that the plaintiff was fired, but argue that because the employment was “at will,” he could be discharged for any reason or no reason at all. Or that while there was an injury to the plaintiff, there were no compensable damages flowing from the injury. Again, as the advocate, you are the architect of your plea for justice.
You should use your case’s story at every stage of the litigation. Effective storytelling in a lawsuit doesn’t begin at trial or in an arbitration proceeding. The preparation of your story starts when the case first comes into the office and continues through appeal.
Begin by identifying applicable jury instructions that cover the causes of action and affirmative defenses that are pleaded. This is the legal framework on which your argument will be based. They are the bones on which the flesh of the story is hung.
As you develop your client’s story, frequently evaluate its power—its persuasiveness and salience—as you learn more about the facts of the case and the law that will be applied to it. I would suggest applying four tests to assess your story’s power.
Fit—Is your story true to the facts, and does it preserve the appearances (i.e., is it consistent with what we know to be true)? Does it do so honestly and without finagling?
Fertility—Does your story generate a satisfying explanation for the case? Does it allow room for a listener’s perceptions? Does it accommodate new data?
Effectiveness—Does it engage the listener, and is it interesting? Does it break down in the face of counterargument? Does it set out a workable principle?
Simplicity—Is it easily understood? Does it observe Ockham’s razor, the law of parsimony that holds that, between competing explanations, the simpler one is to be preferred?
Precondition your judge or arbitrator by laying out your themes in pleadings, initial appearances, and dispositive motions. Your judge is an important audience for your story, even if the case will be tried to a jury.
I attended an initial case management conference before a smart, engaged judge in the Eastern District of New York in a series of cases brought by the families of passengers tragically killed in a midair collision between a fully loaded Boeing 737 and an executive jet. I represented an avionics manufacturer that provided equipment to both airplanes. The judge asked for views on how the case should proceed. I used the opportunity to tell the judge why the case didn’t belong in his court. “This is a case about a tragic midair collision over the Amazon jungle in Brazil, between a passenger jet owned and operated by a Brazilian airline and an executive jet made by a Brazilian airplane company. All the passengers and crew were Brazilian residents. Both airplanes were under the control of Brazilian air traffic control when the collision occurred. The accident is being investigated by Brazil’s equivalent of our NTSB. The physical evidence from the accident remains in Brazil.” At that point, the judge interrupted me and said, “Counsel, I think I may be hearing your forum non conveniens argument.” I said that issue should be the first order of business in the court’s case scheduling order. And it was.
In discovery, gather the facts that buttress your story and blunt areas of attack on your intended themes. If the facts don’t come in as expected during discovery, be prepared to modify your story as necessary to conform to the facts. You may even have to change your case theme entirely to be consistent with the evidence.
In voir dire, ask questions that will alert you to your audience’s likely reaction to your story before they have heard the evidence and been instructed on the law. Listen for juror attitudes, values, and beliefs that are potential barriers to accepting your story. Here, you are listening to the potential jurors’ stories for signs they may not be open to your client’s story. Don’t be afraid to ask the proverbial Bob Dylan “How does it feel?” questions that give you insight into what a juror both thinks and feels about issues important to your case.
For-cause or peremptory challenges may eliminate the most problematic jurors, but you are a fortunate trial lawyer indeed if the entire panel will be attuned to your story. Further modification of your story may be necessary to speak effectively to the views of the jurors left on your panel.
You will develop the facts to support your theme through witness examinations. Volumes have been written about the conduct of direct and cross-examination, but from a storytelling standpoint, make sure you have a good understanding of whom you need to call and why, to ensure that all of the points of your story are covered by witness testimony.
Opening statement and closing argument allow you to tell your client’s story directly to the trier of fact. Opening is an extremely important stage of a trial or arbitration because it gives you the opportunity to announce your theme and begin your story. What will the evidence show, and how is it consistent with the outcome your client deserves? Closing is the last chance to weave the facts and law into a complete story that compels the trier of fact to right a wrong and provide justice to your client. Your story ends by delivering on the narrative you established in your opening and why it requires a specific result.
Tell a good story when you advocate for your client’s cause and you’ll live happily ever after.
