Dissecting good stories to identify what makes them persuasive shows that all have three structural components. Regardless of the type of story—an Edgar Allan Poe classic, the latest Hollywood blockbuster, a soap opera, a multipart Broadway play, or a trial covered by Court TV—it will have the following substantive and structural elements:
• Establishing shot;
• Development stage; and
• Resolution of conflict stage.
The establishing or opening shot is the first several minutes of the story. In a legal story, it is the first two to three minutes of the opening statement. It is where atmosphere is created, posture is established, and perspective is defined. It establishes the “climate” in which the story will be told and is arguably the most critical component because it affects the way jurors will perceive the rest of the story.
During the development stage of trial, lawyers present the facts of the case. In the opening statement, facts are typically related to the jury in the form of a narrative of what the witnesses will say. Because the witnesses will be restricted to a question-answer format and will not be allowed to tell stories, the lawyer must weave the key witness messages into the story structure. Despite these restrictions, witnesses should be used to reinforce key themes or “home base” messages consistent with the overall case story.
Research shows that jurors create their stories by finding and matching five basic elements:
• Act (what was done);
• Actor or agent (who did it);
• Means (how it was done);
• Purpose/motive (why); and
• Context (what were the circumstances).
In a successful presentation, all five elements must be accounted for and compatible with each other. If the story is not provided to the jurors, they will undoubtedly try to construct their own. If that happens, the lawyers have little or no control over the story and, consequently, over the outcome of the case. However, all too often the lawyers fail to provide the jurors with the complete set of elements, or provide them with elements that are not consistent with each other.
The element most often missing is motive. Even if the law does not require a showing of motive, jurors are always looking for it, and if they do not find it, the story falls apart. Therefore, lawyers will be well advised to follow the jurors’ logic, rather than trying to steer them toward accepting the legal rule.
Another common mistake involves a mismatch between the elements. Lawyers often reason that the more negative information they present about the other side, the better off their side will be. However, in a narrative, adding negatives does not always enhance persuasion. Referring to the five story elements noted above, jurors are looking for unity and consistency: whether this kind of agent under the given circumstances is likely to have this kind of motive and perform this kind of act using this kind of means.
A good example of a mismatch is a civil case where the plaintiff’s attorneys described a defendant as an utterly irresponsible, reckless, long-time polluter, who never did anything right. The plaintiff’s lawyers hoped that the jurors would hate the defendant and award the plaintiff a large sum of money. Instead, the jurors began to wonder about the responsibilities of other parties: “If things were so bad, why didn’t the government do something? Why didn’t the plaintiff take actions earlier?” The more they wondered, the more responsibility was lifted from the defendant and placed on other parties. In this case, the plaintiff’s lawyers’ presentation of the defendant as the agent did not match the presentation of the context (society, government, and the people in whose midst the defendant was operating). One solution available to the plaintiff in this case was to accept some of the defendant’s representations about its attempts to stop pollution and present them as the defendant’s way of diverting the attention of the government and the plaintiff, who were deceived by these seemingly good faith efforts.
The five story elements can serve as a checklist to be used throughout the trial preparation. Through the use of the list, thousands of pages of discovery materials can be reduced to a simple short story—which is what the jurors will do during the trial. Using this list, the strong and weak parts of the case can be evaluated from the jurors’ perspective, and a decision can be made as to what additional evidence is needed to strengthen the story. While it is tempting to present the evidence along a timeline, the realization that some aspects of the story are stronger than others may dictate an alternative presentation—the element that opens the story will affect the jurors’ perceptions of the rest of the evidence.
The third structural element is the conflict resolution phase during which the jurors are told that the story is not yet finished and are urged to reach a conclusion. A key ingredient of every good story—whether a narrative, film, or trial—is conflict. Without conflict, there is no story. There are no plots or subplots, no characters that rally to a solution, and no resolution or happy ending. In effective stories, the plea for desired outcome is delivered with a key message that engenders an emotional response from the audience. The goal is to leave the jurors “feeling good” about the way you want them to resolve the conflict. This is probably the most difficult aspect of a story to deliver for defense lawyers, who often must counter the prosecution or plaintiff’s plea to resolve a conflict and restore justice, which typically involves awarding significant damages to a plaintiff in a civil suit or convicting a defendant in a criminal case. The defense must create an equally appealing role for the jury. Whenever possible, a verdict of “not guilty” or zero damages should be presented as an affirmative assertion of the defense story rather than a defensive counter to the plaintiff’s or prosecution’s story.
The final structural element of a story is the coda or ending, which is really a subsection of conflict resolution. It is important in persuasive communication because it lets the audience know the resolution is some desirable state. This section also provides a loop back to the themes presented initially in the establishing shot.