"In the third year of law school, they ought to teach English as a Second Language."
-- Stephen Wermiel, quoted in The Lawyer's Guide to Writing Well, by Tom Goldstein and Jethro K. Lieberman
Most lawyers could do with an intensive remedial course in "Once upon a time." The longer they have practiced law, the more they probably need it. Lawyers strangle their storytelling ability in many ways, but two deserve special mention.
A lawyer's job is to persuade, which is not possible without some type of human connection. Story is the way humans connect, meet and get to know each other. People on a first date listen to each other's stories. Stories are the way humans organize and experience information. Mark Turner, professor of cognitive science at Case Western Reserve University, writes in his book The Literary Mind: The Origins of Thought and Language that story "is the fundamental instrument of thought." It is our "chief means of looking into the future, of predicting, of planning, and of explaining."
Connecting in the law is no different. Stories are how people understand the law, especially in the common law tradition. Every well-written judicial opinion begins with the story (the facts) right after the title (the issue presented). Every poorly drafted opinion begins with a bad story, facts whose relevance readers cannot understand, stated in a manner they don't want to read.
For example, with something as technical as claim construction in a patent case, a bad brief jumps right in with the '043 patent and the grammatical construction of its claims as applied to whatever arcane area of technology happens to be involved. Most opinions from the U.S. Court of Appeals for the Federal Circuit suffer from this same defect; as a consequence they are all but unreadable.
In contrast, the U.S. Supreme Court's March 20 opinion in Mayo Collaborative Services v. Prometheus Laboratories tells a story about how autoimmune patients are tested and treated using the procedures Prometheus Laboratories tried to patent. The story may not be legally necessary, but if the goal is persuading a human being -- as opposed to an engineer -- story is mission critical.
Assuming lawyers even recognize the importance of story in creating an empathic listener, they appear to be working hard to avoid that connection. All sorts of habits and tics from law school or the professional culture impose the death sentence on a good story. Here are a couple.
1. Date of death: Pop quiz time. Think of the best book you ever read, the book that sucked you in so much you lost touch with reality and could not put it down. Now think of the climactic event in that page-turning yarn. On what date did it occur?
The date is lost to memory. In fact, the author may not have written the date down at all. Why? Because the date does not matter.