As trial lawyers most of us need no convincing to agree that our appeal to the jury is best presented as a story. We know that since the dawn of time humans have used stories to make sense out of the world – to learn, to teach, to instill moral values and to memorialize events. That is our human nature. In fact, scientists have shown, through psychological studies, that if we present raw facts to people, they will immediately begin to make up their own stories to make sense out of of what occurred. They will look for motives for what was done and create a story about the facts. The challenge is how to convert a set of facts into a format that represents a compelling story.
To start with, we need to recognize that all of us, including judges and jurors, have “inner scripts.” We have values and understandings of what we believe is important or right and wrong which control our decision making. It controls how we receive and interpret information. It’s been correctly said that a trial is not a legal puzzle. It is a morality play of right and wrong. As trial lawyers we need to look for the moral imperative. Our story must be one of a wrong that needs to be set right. Therefore, motive is a key part of how people arrive at conclusions. We think our job is to prove what happened and negligence. But, to persuade, you have to prove why it happened
In addition, the facts should be presented as a story in a compelling fashion. How do we do that? James McElhaney had a column in the ABA Journal for many years. In writing about this subject he advocated planning before the opening statement how the story was to be told. He insisted the opening statement should be presented as “showing” and not “telling.” He wrote:
“So, long before you plan your opening statement, start to put together the story of the case with ordinary words that make it come alive, and pull together the facts that tell the story of the wrong that needs to be set right. The most difficult part of all of this is to train yourself to write and to speak and think in verbs and nouns, cutting out the modifiers – the adjectives and adverbs – that we always seem tempted to use. Beware of the seductive lure of fancy words.”
Our cases should be presented to the jury as stories of conflict, confrontation and judgment. In addition, we know that a winning story puts the focus of the judgment on the other side throughout the trial. That’s why we start our story talking about the defendant and what the defendant did wrong and not the injuries to the plaintiff or the plaintiff’s conduct.
The structure of the story is important. A story has a beginning, middle and an end. The beginning involves the introduction of the conflict including the main character and an idea of what the story is about. The middle of the story involves a turning point where the “plot thickens” and complications arise. The end of the story incorporates three things: a climax, final confrontation and a resolution.
The difference between a narrative of facts and a compelling story is illustrated by this excerpt from the opening statement by my friend Gerry Spence in the criminal prosecution against prominent attorney Geoffrey Fieger for violating political contribution laws:
“The prosecution sees him only with one eye, and it’s the evil eye. Powerful people at the Justice Department in Washington decided to go after this good man who fights for the little guy. They sent eighty agents to conduct a nighttime raid in his law firm and to question terrified employees in their homes in order to try to create a case against him. You would’ve thought that he was Osama Bin Laden. This is a case of abuse of justice. If the government can do this to Mr. Fieger, they can do it anyone of us. We don’t need the powers that are in Washington telling us what to do here. Thank God we have juries like you that don’t have to answer to anyone.”
In addition to our normal trial skills, let us learn how to be great story tellers for our clients. One of the best ways to do this is by presenting examples of opening, direct, cross and summation to focus juries for their reaction. Practice until it is as perfect as you can get it. Your clients deserve it,.