Brad Knuth

by greg westfall.

How Trial Lawyers Tell Compelling Stories

Ancient History of Story Telling

Even before the advent of lawyers, human beings have long engaged in the ancient art of story telling. Whether etched on a cave wall, spoken over a campfire, or broadcast through a television set, stories are at the heart of how we think and act. They evolved out of a human need to communicate our experiences with each other. Stories pass on moral values and help us make sense of the world. Author Reynolds Rice described the intrinsic nature of stories when he observed:

The need to tell and hear stories is essential to the species Homo sapiens-second apparently after nourishment and before love and shelter. Millions survive without love or home, almost none in silence; the opposite of silence leads quickly to narrative, and the sound of story is the dominant sound of our lives; from the small accounts of every day’s events to the vast incommunicable constructs of psychopaths.

Today, television has replaced the campfire as the venue for the ancient art of story telling. Consequently, listeners expect stories will be told in a fast paced, well-organized, and visually dramatic fashion. However, the basic elements of a compelling story remain the same. All stories have a plot, a cast of characters, setting, and narrative point of view.

Stories are told for a variety of purposes. A story can: 1) entertain; 2) instill values; 3) educate; and 4) persuade. At trial, persuasion is the ultimate goal. How to tell a story, from you client’s point of view, is critical to effective trial advocacy.

Public Fascination With Trial Stories:

The public’s obsession with courtroom drama never tires. As Law and Rhetoric scholar Paul Gewirtz observed, the public is increasingly drawn to the law as an arena where vivid human stories are played out—where stories are told and heard in distinctive ways and with distinctive stakes.

Names like Menendez, O.J., and Peterson have dominated the headlines for months at a time. Even with fictional stories, books like The Firm, movies like A Few Good Men, and television shows like Boston Legal have all reached the top of their respective mediums. Each had one thing in common: a compelling story involving the law.

Keys To Telling A Compelling Story At Trial

Given the importance of story telling in our society, a trial lawyer must be a good story teller. The lawyer must take all the facts surrounding their client’s case and condense them into one compelling story which suggests why the jury should return a verdict in their client’s favor.

Story Basics At Trial:

All stories consist of a few basic elements: 1) the plot; 2) the cast of characters; 3) the setting; and 4) a narrative point of view. At trial, the plot is the series of events that surround the lawsuit. In its simplest terms, it is “what happened.” The cast of characters includes the parties and the witnesses. Each have a role in how the jury hears the story. The setting for the plot is the time and location where the events occurred. The narrative point of view can be told from numerous perspectives. However, the most effective is usually from the client’s point of view.

Reality v. Story:

Before the attorney can tell their client’s story, it is helpful to distinguish between the reality of what happened and the story of what happened. What happened is limited to actual facts, which include the parties, the witnesses, and setting. How an attorney communicates what happened is what separates good lawyers from great lawyers. According to trial attorney James McElhaney, effective trial lawyers know how to presents facts into a compelling story that rings true.

Rhetorical Tools For Effective Story Telling:

A trial lawyers is equipped with numerous rhetorical tools. These tools include: 1) organizational structure; 2) a theory of the case; 3) narrative perspective; 4) foreshadowing and flashback; 5) building suspense, climax, and resolution; 6) points of emphasis and de-emphasis; 7) maintaining credibility; visualization; 9) choice of language; 10) implied causation; and 11) persuasive themes.

Organizational Structure:

The opening statement is the first opportunity a lawyer has to tell their client’s story. While there is more than one structure for an opening statement, somewhere within the opening statement the attorney must introduce his or her client and tell the jury “what happened.” The lawyer may proceed in chronological order, reverse chronological order (e.g., begin with damages), or a montage. Usually, chronological order is most effective since it is the easiest to deliver and the easiest to follow.

Theory of Case:

A solid theory of the case is critical to effective story telling. By identifying your theory of the case, the attorney can make intelligent choices on which facts to include, which facts to omit, which ones to stress, and which ones to minimize.

Narrative Perspective:

Although there are multiple perspectives from which to tell a client’s story, the most effective is usually from the client’s point of view. The attorney wants to put the jury into the shoes of the client.

Suspense, Climax and Resolution:

Suspense is a feeling of uncertainty which can help draw the jury into the story. The climax is the turning point in a story where the outcome is made known. That natural climax in a tort case is when the plaintiff is injured from the defendant’s alleged negligence. Resolution at trial is where the attorney explains to the jury how the story should end with a just verdict for the client.

Foreshadowing and Flashback:

Foreshadowing is a hint of what will come. In addition to its inherent narrative appeal, foreshadowing can be effective in demonstrating notice of a dangerous condition. A flashback is an interjection in the story which takes the jury back in time. This is helpful when comparing and contrasting the plaintiff’s quality of life before the injury and after the injury.

Points of Emphasis and De-Emphasis:

Before an attorney can know what points in the story to emphasize or de-emphasize, the attorney must have a solid theory of the case. The attorney must also understand the strengths and weaknesses of the client’s case (as well as their opponents). Generally, emphasis should be placed on the client’s strengths and the opponents weaknesses.

Maintaining Credibility:

In opening statements, the lawyer’s credibility is on the line. The lawyer is telling the jury what he or she believes the evidence will show. In many ways, it is a promise the lawyer makes to the jury. By closing arguments, the attorney can tell the jury, based on the evidence presented, they kept their promise and their opponent did not. During the trial, this means exaggeration and misstatements of fact should be avoided. It also requires methodical preparation of all your witnesses with no surprises. Once credibility is lost, it is often impossible to reclaim.

Visualization:

We have all learned in English class it is better to show than to tell. Rather than state the car accident was “terrible,” show how the accident was terrible. Discuss the twisted metal, the broken glass, and the stench of gasoline. Put the jury at the scene by giving them graphic visuals which they can see in their own minds eye.

Choice Of Language:

A trial attorney’s most important tool is language. If an attorney is representing a plaintiff in an auto case, the word “collision” or “crash” is far more persuasive then “accident” or the “occurrence.” In a breach of contract case, the attorney seeking to enforce the written contract should refer to it as an “agreement” and discuss the importance of keeping promises. If the defense attorney in that case denies a valid contract existed, that attorney should refer to the alleged contract as a “document” and should discuss all its fatal flaws. The attorney’s use of language should also be simple and clear. Another effective method is to speed up or slow down the story if the attorney wants to convey something happened quickly or slowly.

Implied Causation:

Human beings have a natural tendency to draw connections between events even when none exists. In telling a story, if the attorney wants the jury to draw a connection between two events, those two events should be stated one after the other. The jury’s natural impulse will be to make the connection on their own. For example, if a defendant in a criminal trial bought a brand new car right after forty thousand dollars was stolen from his boss, the prosecutor might tell the jury “forty thousand dollars was stolen from the defendant’s boss.’ ‘Two days later, the defendant bought himself a new forty thousand dollar BMW.’” The jury will likely conclude on their own the defendant stole the money from his boss.

Persuasive Themes:

A theme is a unifying idea or message that connects a story together. A theme may be expressly stated or implied. Themes give meaning to what, would otherwise be, a list of empty facts.

Obstacles To Compelling Story Telling At Trial:

There are a number of obstacles to telling a compelling story at trial. These obstacles include: 1) the nature of adversarial process; 2) the rules of evidence; 3) inconsistencies and other credibility problems; and 4) complicated subject matter.

Adversarial Process:

First and foremost, trial is adversarial. Each side has competing interests and conflicting versions of events. Thus, a trial is, in many ways, a contest between competing stories. The competing stories can create a fragmented, contradictory, and confusing compilation of facts. The trial lawyer must bring order out of the chaos. Telling a compelling story, which eliminates unnecessary facts, emphases strengths, and minimizes weakness is critical to effective trial advocacy.

Rules of Evidence:

The rules of evidence, including the rules against hearsay, can hamper an attorney’s ability to tell their client’s story. However, the rules of evidence cut both ways. A series of strong, well-founded motions in limine can severely undercut an opponents ability to tell their client’s story. Attorneys who find their case stripped of one or more important facts must instantly be willing and able to adapt.

Credibility Problems:

Credibility is vital to success at trial. If an attorney tells a story that proves untrue, even on the most minor detail, the jury will question all other aspects of the attorney’s case. Once credibility is destroyed, it is usually destroyed forever. Therefore, everything must be done to avoid inconsistencies, including impeachments, as well as exaggerations and omissions of harmful facts which will be elicited during trial. On the later, it is usually best to front harmful information. If done properly, this will often reduce the sting. In the process, the attorney will have gained credibility in the eyes of the jury by not withholding harmful information.

Complicated Subject Matter:

Trials can be complicated enough without a complex subject matter. A lawyer who finds themselves trying a complex ase must be able to identify the big issues in the case and eliminate the rest. Attorney James McElhaney observes even the large cases can be organized into a few big “rocks.” By identifying these big rocks, the attorney can focus on how to maneuver the big rocks into a clear and convincing story. The attorney who is best able to present a clear and convincing story is almost assured to succeed at trial.

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