A TRIAL PRESENTED AS STORY

We all have heard that we need to present the client’s case as story, but why is that important? None of us need to be reminded that the way to capture attention with children or adults is through story telling. We have learned that it is not just Native American history and culture that was taught and passed from one generation to another through stories. In fact, all mankind’s learning and culture has involved story telling of one kind or another. Alex Haley in Roots reviewed the African story telling tradition which has many similarities to the Native American culture. Scripture is replete with examples of storytelling as the chief means of communicating. We were brought up with storytelling either by our parents or in the books we read or the old radio programs and now by television or the movies. How many times have we heard someone say “did I ever tell you about the time…”?

Some therapists believe that listeners routinely enter a trance like state when listening to a well told story. This has been explained as being mesmerized by the unfolding story. People suspend outside awareness and concerns as they focus on the story. This allows them to be touched at the deepest level resulting in emotional responses including even tears. Story telling is a powerful tool. Throughout history we have communicated our heritage by telling stories and singing songs. While today we may not tell stories sitting cross legged in front of a fire or around the kitchen table, we  pass on our visions and ideas from generation to generation by written stories, radio, television and movies all by story telling. 

The Spence Trial Lawyers College teaches the importance of story telling. Gerry has argued that the most important trial technique is to convert the facts of a case into a story because people learn and communicate through stories. In an article published in the American Bar Association Journal April 1986, Gerry wrote:

“Of course it is all storytelling – nothing more. It is the experience of the tribe around the fire, the primordial genes excited, listening, the shivers racing up your back to the place where the scalp is made, and then the breathless climax, and the sadness and the tears with the dying of the embers, and the silence…The jury wants to hear a story. They’re hard wired for it.”

Albert Einstein has rightly observed that “imagination is more important then knowledge.” Since a trial is a war of impression and not logic successful trial lawyers must become masterful story tellers who engage jurors on a visceral level with the magic of storytelling. It is at that level people decide all important issues and reach opinions.

The steps in story telling 

The steps for story telling involve (1) finding out the facts (2) determining what facts should be emphasized and how to frame the case facts and (3) how to tell the story.

Finding out the facts is critical.  Trial lawyers must know the facts through the eyes of the client. The best method to find out your client’s personal story is not sitting across the desk and interrogating a client. The best way to do this in almost every case is through re-creation and re-enactment involving client demonstration. You need to know not just information. You need to know feeling and emotion involved with the information. Decision making involves a large amount of emotion and persuasion requires emotion. The rest of fact gathering we all understand: the need to visit the scene, to talk to witnesses and to employ discovery procedures.

However, just knowing the facts is not enough. What is  the most compelling issue in this story? The most critical step in this process is deciding what the essence of the case really is. What is the underlying compelling message that will cause the jurors to see this case as having significance to them, their family or community. Why should the jurors care about this case beyond just the interests of the client. The answer to the question, why is this an important case, needs to be discovered. The theme of the case needs to be one of interest to the jurors personally.

Michael McCullough wrote a book Beyond Revenge which explores human nature regarding revenge and forgiveness. It explores our natural instinct for revenge for serious wrongs done and our human nature to forgive other wrongs. People in general have a human inclination to forgive mistakes. Acts of negligence which cause harm, but were unintended. In malpractice cases this is translated into a defense verdict when the only showing is a negligent act without more no matter what the jury instructions say. On the other hand, actions which demonstrate a betrayal of trust or obligation result in a motivation to punish the wrongdoer. Not only to prevent a recurrence, but also from deep seated motives of revenge or punishment. Presenting the story of our cases as ones of betrayal of trust and not merely negligence activate deep seated mental reactions of the part of our jury. How we frame our story, therefore, is very important.

The last step is to decide how to tell the story. There are numerous decisions that need to be made. Spending quality time exploring how one plans to tell the story is essential. The many questions including from whose viewpoint should it be told?  We know it must not start with the plaintiff’s interests and concerns because of defensive attribution. We know it should start with the defendant and the defendant’s conduct. We know it should be told in the present tense as if it were happening now, in front of the jurors. It is as if the lawyer is describing a movie to a blind person in the now and only the facts leaving it to the jury to draw their own conclusions from the facts. We know it must be a story. Told as a story and not as a chronology. The art of story telling is a skill about which many books have been written and should be studied.

Story telling is in reality a return to our roots. The basic way in which we should communicate if we want to persuade. Learning to be a good story teller should be the goal of every trial lawyer who strives for excellence.

 

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