STORY TELLING AS PART OF OUR TRIAL TOOLS

Over the past few years we have been continually reminded of the importance of telling a story in presenting our cases to jurors. Most of us do not need any convincing in that regard. There are lawyers, however, that assume it is a simple concept, but do a poor job of implementing it. Here’s a refresher on  the art of story telling.

To start with, why storytelling? Because our brains are formed genetically in a way in which telling stories is the chief method of learning as well as communication. Some scientists believe that listeners enter a trance like state when being told a story. They say people suspend awareness and concerns as they focus on the tale being told. They are touched at the deepest level causing emotional responses on an unconscious basis. Storytelling is a powerful tool because it is compelling. Not only that, it is difficult to grasp abstract ideas. The surest way to keep interest is to tell a story, not report facts, narratives or chronologies.  Our human history has involved storytelling, cave painting and song singing as the primary means of communication before writing. While we may not tell stories sitting cross legged in front of the fire, our brains still respond to stories. In the past, we passed our ideas and historical information from generation to generation by written stories. It’s part of the human race and it’s evolution. In 1986 Gerry Spence published an article in the American Bar Journal in which he wrote:

“Of course, it’s 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 are hardwired for it”

Elbert Einstein once observed that “imagination is more important than knowledge.” A trial is a struggle of impression and not a struggle of logical thinking. Successful trial lawyers are masterful storytellers who engage jurors on an emotional, imaginative level through the magic of storytelling. That’s the real level people decide all important issues and reach opinions. In fact, we know jurors immediately begin telling themselves the story of the case as soon as the trial begins. They add to the story missing information and once they form an impression of what the story is about, they filter out conflicting information.

So, the question is, how do you tell a compelling story? Louisiana trial lawyer Russ Herman is a gifted storyteller who has written and lectured extensively about the subject. He refers to what he calls Cicero’s six maxims of persuasion which he explains as these:

  1. What reaches the mind moves the heart. When we cause the mind to imagine something it connects with us at an emotional an unconscious level. Passion as well as reason is needed in good storytelling.
  2. Motives explain human behavior. The story should involve the wrong motives behind the defendant’s actions or conduct which cause the harm. Simply describing the wrong or negligence without the motive behind it does not engage an emotional response.
  3. Stories should move from specifics to universal truths. This is the step that empowers the jury to take action. The story has to be more important than just the individual parties involved in the case. There has to have social importance or personal interest for the jurors in the outcome.
  4. Tell the story in a way that engages the listener. This is often best done by telling the story in the present tense, is if the jury were watching a movie of the events unfold in front of them. That draws the audience into the story itself at an imagination level. A  chronology or narrative of past facts cannot do the same.
  5. Inoculate and point out the negative issues in the defendant’s case. Melvin Belli was fond of saying “a trial is a race for truth.” We need to be the first ones who describe the negative aspects about our case in the best possible light as early as possible. That will inoculate the jury against the drama when these facts come out later in the trial. In addition, a trial is not only about the positive issues in our case, but about the negative aspects of the opponent’s case. Our story must tell about both.
  6. Tell the story with passion and logic in words the listener understands. Communication is not what we say. Communication is what our listener heard and understood us to say. We need to say things simply,briefly and at about an eighth grade level to ensure our story is understood.Otherwise, the listener will first struggle to understand and follow; then become frustrated and upset. However, not upset at themselves, but with the lawyer telling the story.

A lot has been written about the outline of a good story. The most often cited authority, Joseph Campbell, outlined 12 aspects in his book a Heroes Journey:

  1. THE ORDINARY WORLD.  The hero, uneasy, uncomfortable or unaware, is introduced sympathetically so the audience can identify with the situation or dilemma.  The hero is shown against a background of environment, heredity, and personal history.  Some kind of polarity in the hero’s life is pulling in different directions and causing stress.
  2. THE CALL TO ADVENTURE.  Something shakes up the situation, either from external pressures or from something rising up from deep within, so the hero must face the beginnings of change.
  3. REFUSAL OF THE CALL.  The hero feels the fear of the unknown and tries to turn away from the adventure, however briefly.  Alternately, another character may express the uncertainty and danger ahead.
  4. MEETING WITH THE MENTOR.  The hero comes across a seasoned traveler of the worlds who gives him or her training, equipment, or advice that will help on the journey.  Or the hero reaches within to a source of courage and wisdom.
  5. CROSSING THE THRESHOLD.  At the end of Act One, the hero commits to leaving the Ordinary World and entering a new region or condition with unfamiliar rules and values.
  6. TESTS, ALLIES AND ENEMIES.  The hero is tested and sorts out allegiances in the Special World.
  7. APPROACH.  The hero and newfound allies prepare for the major challenge in the Special world.
  8. THE ORDEAL.  Near the middle of the story, the hero enters a central space in the Special World and confronts death or faces his or her greatest fear.  Out of the moment of death comes a new life.
  9. THE REWARD.  The hero takes possession of the treasure won by facing death.  There may be celebration, but there is also danger of losing the treasure again.
  10. THE ROAD BACK.  About three-fourths of the way through the story, the hero is driven to complete the adventure, leaving the Special World to be sure the treasure is brought home.  Often a chase scene signals the urgency and danger of the mission.
  11. THE RESURRECTION.  At the climax, the hero is severely tested once more on the threshold of home.  He or she is purified by a last sacrifice, another moment of death and rebirth, but on a higher and more complete level.  By the hero’s action, the polarities that were in conflict at the beginning are finally resolved.
  12. RETURN WITH THE ELIXIR.  The hero returns home or continues the journey, bearing some element of the treasure that has the power to transform the world as the hero has been transformed.

Adopt your case story around these factors in order to create a compelling, emotional story. Other factors are important too.  Most lawyers cannot restrain themselves from injecting into their story excessive details of dates, names and other information that distracts the listener from the central story. A good story is a big picture story. It has an attention grabbing introduction, a curiosity factor to hear the rest of the story and a conclusion with an objective for action. People generally are visual and the introduction of attention attracting visual aids can be important in storytelling. Other basics include  a central theme and the use of  mnemonic devices such as the “the rule of the three P’s.” For example, “they failed to plan, prepare and prevent.” There is also a well-established rule of three. When we list items we should not list more than three at a time. Research indicates that lists of three are remembered most easily. Storytelling should involve as many of the senses as possible in order to create a mental  connection. For example, describing the sound of the shattering of glass or the squeal of tires can make the situation real if done with sincerity.

Our story should conclude  with something powerful. In May 1912, after a three month trial where Clarence Darrow was accused of attempting to bribe a juror, he argued on his own behalf and concluded  with these words:

“I have friends through the length and breath of the land and these are the poor and the weak and the helpless  to whose cause I have given voice. If you should convict me there will be people who will applaud your act, but if in your judgment and your wisdom and your humanity you believe me innocent and return a verdict of not guilty in this case, I know the tens of thousands of the weak and the poor and helpless throughout the world will give thanks to this jury for saving liberty and my name.”

The newspapers reported that the judge and several of the jurors were weeping when he concluded his argument. It took the jury 34 minutes to return with a not guilty verdict.

This is a classic example of a powerful conclusion by a masterful storyteller. This is also what we must learn as trial lawyers. Storytelling is a return to our roots. It is the basic way in which we should communicate when we want to capture the minds and hearts of others.  Learning to be a great storyteller should be the goal of every trial lawyer who wants excellence.

 

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