The Legal Advocate

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Monthly Theme: Storytelling Part One

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Everyone Has a Storyteller Inside Them

Written by NITA Program Director and Guest Blogger, Terre Rushton

Everyone has a storyteller inside them, and everyone has a story to tell. James Joyce once said he never met an uninteresting person. The difference between people who seem interesting and people who don’t is their ability to turn their experiences into compelling stories.1

Why are so many lawyers unable to be interesting in court?  Maybe because we are trained in a system that has the result of squeezing the creative juices out of us; law schools use the Socratic method, issue spotting, and make us read hundreds of appellate cases written in a style that is highly parsed and authoritative. We are rewarded for using the archaic, multi-syllabic language of our profession, language that needs translation when we talk to our family and friends…and to a jury. In almost every NITA course, we struggle to get lawyers not to talk like lawyers, to instead adopt simple, clear, clean words and concepts. In other words, to be the communicators that they probably were before law school.

Whatever the reason, many jurors and judges find trials to be boring.2 Part of the problem is that so much of the information we present during a trial is oral, and listening is a very poor way of retaining information.3 We have to find a way to up our game, especially to those who are used to getting information faster better, and in a more stimulating way than a human speaker can deliver. Storytelling is ancient social media. Man’s religious texts, oral traditions, cave paintings, all told stories of right and wrong, good and evil, the hero and the adversary.  Our cases involve just those classic elements, whether we are personal injury lawyers, legal service lawyers, or intellectual property lawyers. An injustice has been done, someone is damaged and we are asking that our client be made right. Give the fact finder a narrative that captures the imagination and at the same time allows the listener to place reason and logic within its’ outlines. Give them a simple, believable, logical explanation that can be recalled throughout the trial and you will increase the chances your client will prevail. A good story that engages our listeners from the beginning, continues through the evidence, and is concluded in the closing argument may be the answer to our increasingly short attention spans.

As Johnny Dzbak says in his blog, The Art of Charm “Two people can tell the exact same story with wildly different results. One captivates, while the other has the audience checking its watch. While we tend to look for exciting stories, the actual story material isn’t what separates a good story from a bad one. What makes the difference is the emotion the storyteller puts into their narrative.”4

Every story has that emotional center. In literature, art or choreography, the emotional core is how the artist  feels about the events they’re describing.  Not in trial. The lawyer doesn’t reveal her personal beliefs about the facts and events and it is probably improper to do so. Instead, under the NITA method of case analysis, the lawyer tries to discern the persuasive theory, what I think of as the moral or the social mores that pulls together both the legal and the factual theories and puts that emotional center into the story.

That sounds easier than it is. The best lawyers struggle to find that persuasive theme, that core. Stories (and cases) die when they are just dates and events with no connective tissue. I’m paraphrasing one of the foremost authors on trial advocacy who says that a good trial story includes 1) Central characters, what they did, and why they did it; 2) The important facts, both good and bad, but not every fact; 3) A persuasive theme that appeals to common sense and morality ( I’ve referred to this as the emotional center); and 4)  a careful organization, where each fact presented makes each succeeding fact more likely to have happened.

Now, when you do case analysis for your trial, think of telling the case as a story.  What is the emotional center? Who is important to the story?  Why did they act as they did? What are the best of the good facts you have, and how will you explain the things you wish hadn’t happened?  How can you organize it so people remember or even better, anticipate the evidence you told them they would hear?

You now have the elements of  a really good opening and, with only a little tweaking, a great closing argument.  But  don’t forget that the trial story has to continue throughout the case.  The testimony and the exhibits are a critical part of your story.  The testimony obviously has to reflect the theme of the case/story, has to make the listener see the witness as you want them to be seen, and has to explain their actions, both good and not so good.  Make sure their account clearly reflects the larger story that you are telling.  Word choice, repetition, and other rhetorical devices can greatly aid you in this, but witness preparation is key.  We use persuasive foundations for exhibits, not just technical foundations, because we want the jury to know how an exhibit came into being, where it fits in the narrative and why it’s of interest even before they see it. An exhibit has a story, a life cycle, that fits into your larger story. Make sure that you understand what the exhibit has to say is and allow it to tell its story.

And then you need to think about simple but active language, eye contact, tone of voice, stance, gestures…the list goes on.  But two things are most important to being a great storyteller.

You have to practice, and practice, and practice again.  Develop your innate oral advocacy skills.  Don’t start with the most important case of your lifetime.  What are the personal stories you enjoy telling ? (Yes, we all tell stories.)  How about that driver who cut you off, or that horrible blind date?  Or the funny thing your three-year-old said to you? Think about those stories.  If they are good stories, ones that people have enjoyed, unpack them. Think about whether they have the elements that Lubet describes.  Practice those short and familiar stories aloud, alone or to a sympathetic ear, and see if you can improve upon them.  Get to the point where telling a story is enjoyable for you and for your listener.

You have to be interested to be interesting. The adage is so true here.  If you aren’t truly interested in the story that you are telling, if you don’t believe in it, why would anyone else? That’s why the search for a persuasive them is so hard…it must be one that resonates inside you. Don’t use the kind of rhetorical device that works for someone else. Find the theme, and the way to share it that is authentic and that you can talk about from your heart. Your story will be wonderful.

1 Johnny Dzubak, from one of 56 Blogs on The Art of Charm
2 “From time immemorial jurors have been falling asleep because from time immemorial lawyers have been boring,” John Gleeson, a former federal judge in Brooklyn, told The Wall Street Journal.  Ladies and Gentlemen of the Jury, Please Wake Up, WSJ December 08, 2017
3 Edward Dale, Audiovisual Methods in Teaching, Dryden Press, 1969. Dale’s research led to the development of “The Cone of Experience” which postulated that people retained only 20% of what they hear.  Dale is often cited as the father of  learning by doing.
4Johnny Dzubak, again

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  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
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