Category Archives: Advocacy

TRIAL LAWYERS AND STORYTELLING

Philip N. Meyer is a professor  of law at Vermont Law School.  He Emailed me about a book he has written, Storytelling for Lawyers published by Oxford Press. I have not had the opportunity of reading his book, however the table of contents shows a comprehensive list of subjects about storytelling. I recommend any well written book on this important  subject.

Clearly storytelling is an essential tool for trial lawyers.  The  Spence  Trial College teaches storytelling http://www.triallawyerscollege.org/. Learning  how to tell stories about the facts of a case is a tool every lawyer needs. I’ve spent some time studying script writing as a means of  learning about storytelling. My wife and  I sponsored an informal class  with actor Tom Skerritt and other  professionals from the Seattle Film School for a small group of trial  lawyers &  friends because of the importance learning how to create and tell stories. I’ve published before on this subject, but Professor Meyer’s new  book inspires me to post about it again.

Why Storytelling? 

None of us need to be reminded that the way to capture attention with children or adults is through storytelling. Lately literature about the skill of trial has been full of articles about becoming story tellers in trial. It is not just Native American culture that traditionally was oral. All mankind’s history has involved storytelling.  Alex Haley in Roots reviewed the African oral tradition as well which has many similarities to the Native American. 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.

Why are stories so compelling? Look at the parables of Jesus in scripture which are in story form. We see that one important fact about this form of communication is that they always make truth concrete. It is difficult to grasp abstract ideas. Most people think in pictures. Parables make truth into a concrete picture people can see and understand. Further, all great teaching begins from the here and now in order to get to the three and then. If you are going to teach about things people don’t understand you need to begin with things they do understand. Parables involve things every person understands from their own experience and from there lead to things which they need to understand. Most important, parables compel our interest because they are stories. The surest way to get interest is tell a story. The parables allowed people to discover truth for themselves. They all contain the question, what does this mean to you? Some things are best left to be discovered and stories allow you to create that in the listener. Note also that the impact on the people hearing the parable was immediate. It was spoken not read. It made truth flash upon a person with immediate truth. But also note that parables only had one point to make. They were simple and they were very understandable.

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 storytelling. 

Gerry Spence emphasizes story telling at the Spence Trial College. He has argued that the most important trial technique is to transfer one’s case into a story because people are used to storytelling and because it is an effective technique of persuasion. Your client’s story should be featured in all aspects of the case: jury selection, opening, direct, cross and closing. It is in the repetition of your client’s story that will persuade the jury.

In an article published in the American Bar Association Journal April 1986, Spence 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.”

The importance of storytelling in human understanding is underscored by the high intensity of communication. We must simplify and communicate in ways that will be heard in order to get through all of the information being thrown at us daily. Peter Large in The Micro Revolution Revisited says more information has been produced in the last 30 years than in the previous 5,000 years. About 1,000 books are published internationally every day and the number of books in top libraries doubles every 14 years.

Since words alone play such a minor role in communication we need to think in terms of storytelling for full impact. We know that what is said counts for only part of what is understood. Our vocal message (inflection, resonance etc) accounts for a  large portion of the understanding. But, a very important part of the understanding is nonverbal. Therefore, storytelling is of great importance in our efforts to persuade.

Storytelling simplifies and focuses attention for the listener. When people receive random, unstructured information they become anxious and soon stop listening completely. This happens when information does not tell us what we want or need to know. Henry David Thoreau said it takes two people to speak the truth – one to speak and another to hear. What counts is not so much what is said, but rather what is heard or thinks was heard.

Albert Einstein has rightly observed that “imagination is more important than 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.

USE LOGOS, PATHOS & ETHOS TO BE A GREAT ADVOCATE

The American Journal of Trial Advocacy is published by the Cumberland school of law, Samford University. I highly recommend the publication for plaintiff trial lawyers. The subscription is a modest $24 per year: Contact them at jtrialad@samford.edu. The summer 2013 issue has an article by Edward D. Ohlaum “Authentic Advocacy: Lawyering with Character.” Some of his observations I thought repeating were these.
Aristotle taught that there were three means of effecting persuasion. “The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms in (3) to understand the emotions – that is, to name them and describe them, to know their causes in the way in which they are excited.” The Greeks believed that the three components of persuasion were “logos” – the logic of the argument based on a well-reasoned theory of the case. The second was “pathos” – a passionately delivered an emotionally resonant presentation. The third component was “ethos” – ethical discipline.

The ancient Greek teaching about persuasion seems very relevant and true today. Certainly our evidence must be presented rationally and logically. The passion of the advocate and obvious belief in their cause is a significant factor in the persuasive nature of the case we present. Both of these components are clearly important and significant parts of persuasion. The concept of ethos is the character of the applicant as seen by the jury. It is the prism through which the jury will view what we say. Aristotle claimed that our perception of the speakers character influences how believable or convincing we find the person to be and accept what they say. This seems to me to simply be an acknowledgment that the jury evaluates the presentation made by the applicant in large part on the basis of the credibility of the speaker. We tend to accept what is offered by those we trust. A trial is often a contest of credibility and trust between sides as well as between advocates. Mr. Ohlbaum argues that when we attack our adversary unfairly in an insulting way we violate the rule of ethos and lose credibility. He suggests that condescending comments and personal attacks on our opponent undermine our credibility. He also suggests that the dynamics of cross examination are important with regard to this matter. Interrupting and arguing with the witness in unprofessional way reflects on our credibility.

He suggests some ways to control the witness in a respectful and professional manner:

1. Give the witness another opportunity to answer correctly by simply asking the question in exactly the same way again
2. Get an agreement from witness: “so, we can agree, after you left the meeting, you failed to report the incident?”
3. Take the explanation off the table: “regardless of what you say you did when you left, you didn’t report the incident, did you?”
4. Question the witness’s fairness: “do you understand that I am asking you whether you failed to report the incident and not why you left the meeting?”
5. Question the witnesses understanding: “do you understand the difference between my questions about whether you reported yesterday in a question of why you left the meeting?”

In a footnote the author quotes from the outstanding advocate Michael Tigar. He recommends what Tigar calls the “do you believe in America” cross-examination:

Q. I understand you’ve already told the jury that. But you understand that the jury has to decide this case?
A. Yes
Q. You don’t mind my asking these questions do you?
A. I suppose not
Q. Neither you nor I are going to decide this case are we? That’s the jury’s job, don’t you agree?
A. sure
Q. That’s the American way, isn’t it – to give both sides a fair chance?
A. Yes
Q. Well, then, let me go back to this group of photos I picked out for you to look at and I’ll ask my question again.

The author acknowledges the obvious fact that the credibility of the advocate needs to be transferred and applied to the client. Juries identify clients with lawyers. Good advocates show identification with their clients by interaction during the trial. Conferring, touching, and referring to the client at appropriate times during the trial draws the client into the reservoir of credibility which the advocate hopefully has created with the jury.

The Greeks were right and we need to make modern application of their concepts of persuasion. I think this does include ethos and character of the advocate. I think it is particularly true today that jurors are offended by unprofessional conduct especially personal attacks on ones opponent. If we are going to persuade we need to be trusted and we aren’t going to be trusted if we aren’t credible. Credibility depends upon how our true character is perceived. Being a genuine human being is an essential part of credibility.

PRINCIPLES OF PERSUASION

Edward Burkley and Darshon Anderson published an informative article “Using the Science of Persuasion in the Courtroom” in Persuasion Research. Among the research conclusions they discussed where these.

Research showed that if people who are asked to think of reasons to support a position and have difficulty generating ways to do so, they are likely to perceive the idea as a bad idea. Therefore, the authors say, by asking the jury to think of some ways (no more than three to make it easier) that your position is right enhances the jurors acceptance of your viewpoint. By the same token, you can weaken your opponent’s position by asking the jury to think of five or six (multiple reasons) why your opponent’s position is correct makes it more difficult and leads to the mental conclusion that position must not be correct. It is the ease with which we can come up with supporting reasons that makes us conclude we must be right and accounts for the opposite result when it is difficult.

Your manner of delivery has an impact on acceptance. People who are hesitant in delivering a message, for example inserting phrases like “you know” or paused or were viewed as less credible than people who did not do this. This research suggests that when speaking to the judge or jury, it is important to deliver your arguments with confidence, clarity and in a measured manner. Preparation to deliver the message without fumbling, pauses or hesitation means you are going to be more persuasive.

I written previously about the NLP techniques of mirroring others speech and nonverbal attitudes. This article cites research that confirms the fact mimicry does impact the listeners acceptance of you and your message. That means adopting the same physical positions, rate of speech, and other characteristics of the other person. In one research study salespersons who mimicked the customer were over four times more likely to make a sale than those who did not. The customers however were unaware that they had been mimicked, which means it must be done briefly and in a less than obvious manner. Research indicates that this is an effective technique because people are naturally ego centered and prefer things that are common to themselves. A great deal of research has demonstrated that the more similar something is to us the more we like it. We like people who like us, think like us and act like us. It only takes a few seconds when done correctly. Furthermore, this operates at an unconscious level.

From the experience of brainwashing in POW camps it was learned that fatigue helps get people to comply with a request or accept a message. In several studies people’s energy levels were monitored to determine their ability to resist persuasive messages. The research confirmed that when levels of fatigue went up people’s resistance went down. The authors say this would suggest that when jurors are fatigued these are peak persuasive time periods. During a trial this generally is before lunch and at the end of the day. Strong arguments should be repeated and one should save your strongest arguments and strongest evidence for these situations when the audience will be more open to influence during periods of fatigue.

We are all aware of the concept of inoculating against accepting an opponents argument or position. Influencing their thinking before the opponent can make the argument is an effective persuasion device according to the authors. In general people do not like to know that they are being persuaded. When they feel their freedom is being restrained they respond by maintaining their original position or resisting the message. One way to take advantage of this fact is to point out the various persuasive “tricks” that one’s opponent plans to try to use to change their mind or sell them an idea. Generally when one begins by offering weak arguments first the listener begins to reject the statements and generate counter arguments in the process. Therefore before one’s opponent has had the opportunity, presenting the jury with weak versions of the opponents arguments will inoculate them to the later arguments offered by the opponent.

Lastly, the authors suggest that common sense and research suggests that first and foremost you should be seen as a credible source. This article argues that to do that requires you to provide strong arguments for your position by being persistent, capitalizing on low energy time periods, avoiding hesitant language, many when appropriate, asking the jury to think of a few reasons why your position is correct, informing them that your opponent will try to persuade them and offering a few weak arguments in that regard, so the jury can effectively build up resistance. A a copy of the original article can be found at www.thejuryexert which is an excellent website for helpful information.