lawyer as storyteller

James R. Elkins

The Trial

Lawyers Talking about Stories

Using Storytelling Techniques to Craft a Persuasive Legal Story
[Reprinted from Galina Davidoff, The Criminal Practice Report, vol.11 (18), 1999][Focusing on how jurors make use of stories in their decision-making]

"[J]urors begin to develop a story about the entire case based on the previews given in the opening statement. Jurors fill out the story using their own experiences, attitudes and perceptions as a framework. . . . [J]urors fill in the gray areas in the dispute at hand and 'connect the dots' based on related experiences and their overall views of the world. Jurors then selectively filter information presented to them to maintain a coherent story. While the story is elaborated upon throughout the trial, there is a strong tendency for jurors to discard information inconsistent with the main story line."

"[J]urors begin to forumulate their story about the case very early on in the process."

"So what do jurors do? How do they make sense of the conflicting information presented at a trial? Years of study of jury behavior have shown that, from an information processing standpoint, all jurors do similar things regardless of the issues in the case, the lawyers, or the venue or jurisdiction. Each juror strives to make sense of the conflicting information by formulating a story that explains the situation in familiar terms. The 'juror story' about the case is the picture of the case the juror will remember long after the trial is completed. It is the narrative 'self talk' that the juror will use to explain the conflict in familiar terms. This 'juror story' is the essence or heart of the story, reduced to the three or four key messages or themes that define the case from the juror's perspective. As the story teller, the trial lawyer can affect how a juror describes the case and defines his or her story."

"Jurors feel that they have to make a decision, so they turn inward to their own experiences to evaluate the case.  We know through our mock jury research over the years, that  jurors view the facts of a case through their own cognitive or selective “filters.”  Jurors' life experiences influence their perceptions of the events and issues in your case.  Indeed, we know that a juror tends to listen to and believe information that is consistent with his or her life experiences, and to discount information that does not match with that experience.  Research shows that information that is consistent with one's beliefs is processed quickly and remembered better than inconsistent information.  Ambiguous information is perceived as consistent with those beliefs, and information that is inconsistent is scrutinized and more likely to be rejected. 

If a trial attorney is to be persuasive, he or she must be able to tell the case story in a way that allows it to penetrate the jurors' cognitive filters.  The theme(s) of the case must be consistent with the jurors' view of the world.  In addition, simple word choices can make the difference between communicating your message effectively and losing the jurors.  For example, try substituting “after” for subsequently” or “I would ask you to consider” or “I would suggest” instead of “I submit to you.”  The key is to communicate in a language that the juror will understand and that will fit with his or her life experiences." ~ How Jurors Really Think: A Primer of Jury Psychology

"Jurors listen deductively, developing a story that explains the conflict early in the trial process and then filtering the evidence selectively to maintain a consistent picture. The trial lawyer must tell a complete story--which includes compelling themes, a specific narrative structure, and narrative elements - in the opening statement if he or she is to get jurors to form a favorable story of the case."

"The establishing or opening shot is the first several minutes of the story. In a legal story, it is the first two to three minutes of the opening statement. It is where atmosphere is created, posture is established and perspective is defined. It establishes the 'climate' in which the story will be told and is arguably the most critical component because it affects the way jurors will perceive the rest of the story."

[Opening Statement]

Storytelling: Why We Do It & How to Get Better
[Stephen P. Lindsay] [alt. source]

Storytelling is a "concept which includes an overall theory of defense, various themes used to support the theory, and the way the issues are presented to the jurors. Differing tones of voice, pace of questions, body language, eye contact, and the implementation of various rhetorical devices in the presentation of the client’s story of innocence are all a part of storytelling. Thus, storytelling is an atmosphere of interest and intrigue created for the jurors by the defense attorney which thereby creates a context within which the jurors will evaluate the evidence."

"[S]tory telling empowers jurors to pay attention, to listen intently, and to remember. More importantly, it causes jurors to invest in your case with their hearts --not just their minds. It is far better to have two or three jurors who believe in your case with their hearts than six or eight who believe with their minds. 'Mind believers' will change their votes more easily for they tend to reflect and analyze from the perspective of 'my opinion is logical so show me how I am wrong and I will consider changing.' 'Heart believers' will fight for you and your client, persuading others that their/your position is right."

"Storytelling allows you to set the stage, cast the players, create the mood, and put into place a tailored framework that will affect the manner in which each juror will perceive all that is to follow. Without a framework, you will get twelve different spins on what has been presented usually, though, in synch with the prosecution’s theory. By creating a framework, you guide jurors’ imaginations with your story resulting in many if not most of the jurors interpreting the evidence in the context of your story."

Use a Persuasive Story Structure
[Cliff Atkinson, Trial]

"Keep jurors engaged by making them the protagonists, saying, for example, 'You are detectives in this case, on a mission to solve the crime." This heightens their interest and makes them feel like they are at the center of the action which in fact is the reality of the situation."

"By applying a persuasive story structure, you can keep jurors engaged and focused from beginning to end."

Trial Advocacy: How to Persuade Judge and Jury
[Gerald Lebovits, Queens Bar Journal, January, 2009]

"Juries process facts by storytelling. Storytelling makes ideas stick. . . . [L]awyers should establish clean story lines and leave out needless details, places, dates, and history. Specific rather than vague or general words increase the impact of the ideas. Before the trial, lawyers should create a storyboard with important facts in chronological order and themes to tell the story during trial. Action is critical to a good story. This is why trial lawyers should focus on the people, not on the problem. They should emphasize the events but not the legal issues. Jurors will not base their decisions upon laws and previous decisions. They will side with the arguments that affect their sense of justice."

Storytelling Throughout Trial: Increasing Your Persuasive Powers
[Murray Ogborn, Trial, 1995]

"If listeners stop listening once a relevant story is located, persuasion becomes more difficult. This means that attorneys must condense information at trial, deliver it quickly with impact, and hope the main theme is etched into the mind of each in a manner favorable to the client. It also means that a motivational factor must be included in each story that will overcome the natural tendency to stop processing once the listener has found his or her own story."

"Storytelling should play a part in every aspect of every case. It is easy to recognize the need to tell an effective and persuasive story during opening statement and closing argument. A lawyer who can capture his or her audience in these two parts of trial by telling a story with impact is to be admired, but that lawyer has not fully mastered the art of communication. Storytelling must be used in every single phase of the trial, from voir dire through final argument." [Direct Examination][Cross Examination]

Telling Your Client's Story
[Alan Blumenfeld, Trial]

Critical Questions: "What part of the big story are you telling with each witness you are calling? . . . Should you be using a chronological or thematic approach in questioning a witness during direct? Are you presenting a mini-story with each witness to explain why he or she has been called to testify? What part of the story are you telling in cross-examination with each of the other side's witnesses?" ("The unfolding of the story is as important in cross as it is in direct. Unfortunately, many cross-examinations are a series of seemingly unrelated bits and pieces of information with no storyline holding them together.")

Elements of Storytelling
[Katherine James, Trial]

"Choose the best way to begin a particular story for that particular case and for that particular client."

"Many attorneys assume that the story they are telling ends in the past. Instead, it is alive, and the jurors are participating in it. The story ends only when the jurors give it an ending."