What’s the story? That’s the question that a detective asks upon arriving at a crime scene; the question a doctor asks the patient in the emergency room; and the question a teacher asks when she catches two students in the act of some mischief. And in this article, it’s the question jurors (and judges) ask of lawyers.
Story is the most powerful form of persuasion—as confirmed by every trial advocacy course and book on the art and practice of persuasion. Trouble is, we lawyers are not trained to think like storytellers. We’re trained to think, write and speak in a logical and orderly manner—avoiding narratives not germane to the main argument. But everyone wants to know the story and everyone loves a good story—especially if it’s told by someone who is prepared, engaging and passionate. This article discusses some basic principles—borrowed mostly from screenwriting—for good storytelling to make your arguments more interesting, compelling and persuasive.
We grew up listening to stories read to us by parents and teachers: “Once upon a time . . .” We tell jokes through stories. We have spent countless hours watching television shows and movies. This is why the great Wyoming trial lawyer Gerry Spence tells us that storytelling is in our genes. Audiences (including jurors and judges) are wired to hear a good story.
Storytelling is the easiest method of persuasion. Why? Because the speaker knows the beginning, knows the essential points to build to the conclusion and knows how the story ends. Perhaps a few details will be missed or forgotten, but the essence of the story will be shared. It’s much easier than remembering logically structured arguments.
The essential components of a good story are three Cs: character, conflict and change. Think about any good movie you’ve watched. You were engaged and entertained because it was likely about an interesting character with a conflict—usually some seemingly inescapable problem or goal. The story built on that conflict, and then a transformational change occurred. The change is either bad (“The Godfather”) or good (“Silver Linings Playbook”).
Most stories have subplots. Subplots fall into four categories, again all conveniently beginning with a C:
1. Context: setting up the main plot or hook.
2. Contradictory: contradicting the main core idea or main plot.
3. Complementary: underscoring or affirming the ideas central to the main plot.
4. Complicating: a complication introduced into the main plot.
Trial lawyers need to choose carefully how many subplots to introduce through the introduction of evidence that takes away from the intellectual and emotional impact of the story and main plot line. I don’t suggest that the trial lawyer can ignore the applicable burden of proof. But too many subplots overly complicate the story by bloating it with unnecessary detail. This is often the case with ineffective courtroom presentations in which the main point is buried in a morass of subplot details.
Because only fragments of the whole story can be presented in court, the key elements must be judiciously selected and masterfully presented. In most trial venues, the trial team will not have time to present every detail, nor should they want to. The team must choose the aspects of the story that will resonate and achieve the desired goal.
There is often a feature-versus-benefit problem. In most complex cases, the features are the facts about the company; the products, the events or claims at issue. The benefit is how the feature helps the audience. In “Presenting to Win—The Art of Telling Your Story,” Jerry Weisman discusses features and benefits:
“When you seek to persuade, it’s never enough to present the features of what you’re selling; every feature must be translated into a benefit. Whereas a feature may be irrelevant to the needs or interests of your audience, a benefit, by definition, is always relevant . . . For people to act on anything, they must have a reason to act, and it must be their reason, not yours.”
The legal team—having spent hundreds, if not thousands of hours on the case—will focus on features: the facts and documents the litigators believe are compelling. The litigators understand the significance or benefits of the features—having lived and breathed the features for a very long time. The audience, however, does not understand the significance (i.e., the benefits); nor does the audience have the same motivation as the lawyers to discern the benefits.
Suppose the key expert witness for a party is a professor of engineering from a prestigious university, and this expert happens to be a “Fellow” of the Institute of Electrical and Electronics Engineers (IEEE), which is also a prestigious scientific/engineering organization. To the lawyers working on the case—who keenly appreciate the benefits of these features—the qualifications of this IEEE Fellow are a really big deal and are benefits. The jury has no clue as to the benefits of these features.
The features must be transformed into benefits that the jury will understand. Thinking like a screenwriter, rather than thinking like a litigator, requires changing one’s focus. Instead of focusing on features, focus on benefits. Ask: How does this fact or document help my audience? How can I convey to my audience the benefit of this feature? Remember that your audience is constantly thinking to themselves: Why is the lawyer (or witness) telling me this? Why is this important? How does this help me decide? Where does this feature fit in the story? To effectively persuade, you must address these questions.
In sum, stories engage us and keep our focus and attention. We want to know what happens to the characters and how the story ends. If the story is good, your audience will pay attention to the end. Good storytelling changes thinking and perspectives. Good storytelling is good advocacy.
Dave Dolkas is an intellectual property trial lawyer and partner with McDermott Will & Emery in Silicon Valley. He is also the author of “Managing Complex IP Litigation,” published by LexisNexis. This article is adapted from a chapter on storytelling in his book.