NAPCO Editor: A strategic goal in developing NAPCO as a national organization dedicated to “advancing trial court leadership through education, research and personal growth” is to enhance the competencies of those who lead courts. Part of that effort is to present helpful articles on ways court leaders may be more influential in inspiring others, clarifying ideas, and conveying important concepts. Mr. Arledge’s observations about the use and value of storytelling as a effective communication tool by trial lawyers in court, we feel, has relevance for those leading them, too.
I taught many trial advocacy courses for lawyers in America and knew what to expect. Participants—usually big-firm associates—were almost uniformly smart, hardworking and eager, and at least in the beginning, lost in the courtroom.
But I thought things would be different when I went to teach in Dublin. Every participant in my advanced advocacy course was a barrister with at least 20 years of experience. They, too, were smart, hardworking and eager. And they also were lost.
That’s when I began to understand the root of the problem for most trial lawyers. It’s not just a failure to know or practice the usual trial advocacy pointers we get in CLE programs, such as using leading questions on cross. The problem is more fundamental. Lawyers all over the world struggle with storytelling.
Storytelling is critical to how people process information. It’s how we see and make sense of the world around us.
Only in the context of a story are facts memorable, understandable and impactful. Only with stories can we appeal to the whole person—the intuitive and emotional sides as well as the logical.
To become better storytellers, lawyers need to leave the insulated world of legal practitioners and study what makes other professional storytellers—like novelists, journalists, advertisers and filmmakers—effective.
Don’t: Convey information—particularly boring information—outside of a narrative.
Many direct examinations start with a question like, “Can you give us the highlights of your educational background?” Is that storytelling? Did The Godfather start with Michael Corleone talking about his college major? Is the first page of The Great Gatsby a copy of Jay Gatsby’s CV? We must stop throwing facts at the jury—particularly boring ones—and tell a story instead.
Don’t: Allow your story to become secondary to your message.
Because we have a case to win, we smash our facts into our predetermined mold to get to the conclusion we want the jury to reach. This is an ineffective tactic, as we’ve seen with some movies and television shows where the primary goal is to promote a political, philosophical or religious position. Think, for example, about the Netflix movie Don’t Look Up. The comet coming for Earth is an obvious metaphor for climate change, and the characters who refuse to take it seriously—almost all of them—are flat and idiotic. You may or may not agree with that premise, but the message of the film flattens the characters, overwhelms the plot and ultimately cannot persuade anybody; where you are after the film is exactly where you were when it started.
Lawyers obviously have important messages to communicate at trial, but we cannot allow our desire to impart a message or moral destroy the story itself.
Do: Focus on real characters, not archetypes.
When handling our characters or trial witnesses, we aim to prove our side is good and the other is bad, hoping the jury will align with our cause. But we do this by offering flat, unbelievable characters that destroy our credibility. We paint the other side as monstrous, greedy, uncaring or even selfish. But eventually, the other side will put somebody on the witness stand, and that person is rarely a monster. In fact, they look presentable, they smile, they are well-spoken, they have a family, they love puppies. In turn, this caricature we offered in opening fails to resemble the flesh-and-blood witness on the stand. We staked our credibility on a story about a flat character that is flawed, because by depriving the characters of their depth, the story we tell about them is no longer true.
Do: Embrace your characters’ flaws.
We make a similar mistake with our own clients, glossing over faults and mistakes; we think a jury will sympathize with our client only if there’s no hint of error or wrongdoing. Does your client have flaws? Admit them. The jury will discover them anyway, and you save credibility.
The greatest heroes and villains are complex. Han Solo was a smuggler and selfish but also a hero. Hannibal Lecter was brilliant, cultured and talented but also a monster. Your witnesses have flaws, and the other side’s witnesses have strengths. Embrace these real complexities.
Do: Know the importance of casting.
We often assign our clients to roles they simply cannot play. I don’t just mean that we ignore bad facts and assert questionable ones—those are obviously problems. But we ignore the importance of casting. Danny DeVito will never play James Bond. It’s hard to imagine Tom Hanks as a villain, though he did step up to play the “bad guy” in the film Elvis. You can give certain actors the right wardrobe, props and lines, but the role will not work. Yet we routinely ask this of our clients.
In my first trial with real money on the line, the other side tried to portray their plaintiff as a superstar sales executive; in opening, he sounded like Tom Cruise from Top Gun. But he wasn’t confident or swashbuckling or heroic; he was smart, reserved and had an underwhelming presence. The plaintiff’s counsel should have built a story around his true nature. The truth is ultimately more compelling.
Do: Remember that stories are built on facts, and facts take time.
We cannot rush the jury to the conclusion. An effective story has a lesson or several, and a well-told story will convey that message clearly. Does anyone really need to explain the moral of The Boy Who Cried Wolf?
In depositions, we focus on obtaining favorable conclusions or characterizations instead of building out specific facts that make a complete plot. In direct exams, we have our witnesses stress their conclusions—“It was a horrible place to work”—but often without detailing what exactly made it horrible. On cross, we put our best fact in front of a witness and then try to bully them into agreeing with our conclusion, instead of walking through the story with context, allowing the facts to undercut the false narrative from the other side. With the right facts and context, the conclusion follows.
And it’s not a terrible idea to hold back a little to raise suspense. Highlight an issue that needs to be decided without telling the jury how they will be asked to decide it. You will better retain the jury’s interest and be more persuasive if the jurors believe they’ve figured something out for themselves.
Tell your story. Take your time. Save some things. Build suspense. Focus on telling a compelling and true story rather than battering your audience with a desired conclusion. Act, in other words, like a storyteller.
This story was originally published in the August/September 2022 issue of the ABA Journal under the headline: “Making Your Case: Storytelling problems and solutions.” Chris Arledge is an experienced advocacy instructor and a partner at Ellis George Cipollone O’Brien Annaguey in Century City, California. He has taught trial advocacy around the country and in Europe