The Legal Advocate

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August Theme: Winning with Visual Story Action

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written by NITA guest blogger David Mann

Everyone knows the best story wins. But what exactly constitutes a good story? We all know it’s important to have a good guy and bad guy, and we know it’s important to frame things in light of common sense violations of rules or principles. We know we need an interesting protagonist who is easy to identify with. But we also know we can do all that and still have a story fall flat and consequently lose an otherwise solid case.

So what’s the secret ingredient to making a story come to life for the jury and leading them to take action? For winning cases in which I’ve constructed the opening, we’ve grabbed the jury immediately with vivid visual language that is active rather than passive. Here’s what I mean. Consider the wording in this sentence from an opening:

“Paramedic Miller’s lack of attention on the scene of Plaintiff Dan Gerson’s cardiac arrest was in violation of the laws of the commonwealth of Virginia. His actions were the cause of Mr. Gerson’s death, and the evidence will show that.”

Information is provided and a strong point is being made. But it’s not visual and it’s not active. It’s impossible for a jury to imagine the scene from that description, and the whole thing is in the passive verb tense, making it seem distant and unimportant. It has a certain legal-sounding formality to it that is at odds with the general culture’s insistence on approachable, plain language. Further complicating things is the fact that the story is displaced into the future, when we’ll presumably hear and see evidence that will tell the story. While it is of course necessary to use legal references and refer to upcoming evidence, don’t do it at the expense of moving the story forward. Establish an active, vivid story before asking the jury to focus on the evidence you’ll be providing and the legal conclusions you will be drawing – all at a later date. The later addition of evidence should serve to flesh out the images they’ve already begun to form in their mind from your well-crafted opening story. You’ve got one shot to do it. If you don’t succeed in planting that story in their imaginations, you might never get them invested.

The description of the paramedic and Mr. Gerson above is the type of sentence that makes up the majority of the first drafts of opening statements I see. We then work the story through several revisions to make it come to life. Look at the difference in this way of depicting the same story:

“Dan Gerson collapses in his chair and his niece calls 911. Within two minutes the police arrive and begin administering CPR. Six minutes later, the paramedics arrive but Paramedic Miller orders the police to stop CPR. Because of the Defendant’s actions, Dan Gerson is dead.”

The second approach is a story. It is told in action language a jury can visualize. The first passage describes the events from a distance: Defendant’s “lack of attention…was a violation of…” and his “actions were the cause of…” The second passage tells it in the present, one image at a time: Plaintiff “collapses,” Police “arrive,” and then Defendant “orders the police to stop.” All actions, all parts of a story that is unfolding in our minds as we hear it.
These are subtle yet powerful ways of making a story come to life. So remember:

  1. Use language that describes things in real time and space so the jury can actually see it in their minds. Avoid lofty statements of vague purpose (“This is a case about…”) until you are certain you’ve given the jury enough concrete story images to work with.
  2. Use action language in simple sentences when you’re laying out the first description of the story. Avoid passive (but legally prevalent) phrases like “…is in violation of…” and instead use clear action words like “violated.”

For lawyers who have spent their professional lifetime working with careful, formal legal language, this may seem counter-intuitive. But it’s critical for engaging the ordinary people in the jury. When the story comes to life, they’ll respond by taking action.

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About the Author

David Mann specializes in persuasive presentation skills and storytelling. A theater artist for over three decades, David now trains attorneys and business professionals how to use performance and storytelling techniques to win. He has taught with NITA for the past five years and has served as Program Director for NITA’s Persuasive Power in the Courtroom communication programs since 2015.

Contact David Mann to get in touch doing any opening statement work: 612-756-0200 or email at: david@davidcmann.com

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
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  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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