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Narrative, the Essential Trial Strategy

By Stephanie Kane

Trial lawyers have always agreed that the only way to succeed with a jury is to tell a story. Indeed, countless seminars are devoted to storytelling in opening statements and closing arguments. But what happens in between “Once upon a time” and “The end”?


The starting place is five basic narrative principles: character, conflict, context, causation, and coherence. The first element of narrative technique is character. Who is your story about? Put another way, through whom do you wish to tell your story? The writer’s job is to get the reader to connect with the hero as he goes about his daily life. Your role as a trial lawyer is to enable the jury to relate to—if not identify with—your client.


If you are representing an individual plaintiff or defendant, your protagonist will likely be the client or a key witness. If your client is a corporation, institution, or other entity, you have an additional challenge but more leeway. A corporation is not a person, except in the legal sense, and a faceless entity is easy to nail. The first step is to identify a single human being in the organization with whom the judge or jury can connect. It is not enough to tell the jury that your client corporation consists of people. You must show them a live individual who accepts some level of responsibility for the events at issue. The ideal “human face” is not necessarily the most colorful person, nor the ultimate decision maker. Rather, it is someone whose very normalcy will enable the listener to relate. If you select the chairwoman of the board, the jury will have to relate to her despite her title and not because of it. Your job at trial will be to place whatever actions your client took in the context of this individual’s all-too-ordinary humanity.


The second element of a compelling narrative is conflict. The simplest and most direct form of conflict is between two individuals. That is the standard trial model. One client wants something, her adversary wants the opposite. They clash, one sues, somebody wins. The most powerful stories, however, do not necessarily involve interpersonal conflict. “Crash” stories are about surprise and hubris. Hubris is the most human flaw, and how the mighty fall is the great social leveler. One minute you’re on top of the world, then wham—you’re flat on your back. What trial lawyer—or judge and juror—can fail to relate to that?


A crash story can be told in one minute or less. “Message” commercials provide good examples. One diabetes awareness spot opens with a healthy-looking man seated in a wooden chair. He could be your husband, brother, or son. Looking directly into the camera, he calmly recounts how he ignored his doctor’s advice about controlling his diet when symptoms first appeared. He pooh-poohed that advice because diabetes could never happen to him. At the end of the commercial he slowly rises and reaches for his cane. For the first time, we realize that he is blind. What do we learn, in addition to the need to take diabetes seriously and not ignore our doctor’s advice? We may lose our eyes, but we can survive a dreaded disease. Our hero has crashed into a wall of his own making, but at least for now he is still in the game. Crash stories teach us what it means to be mortal—after that small death, how to pick up and move on. They provide closure and satisfy our need for a moral payoff. By dealing honestly with human nature, crash stories engender trust.


Crash stories tend to have multiple interpretations. The diabetes commercial carries three alternative messages: the price of hubris, the heroism of continuing with life after being struck blind, and a warning to follow your doctor’s advice. Because the storyteller’s goal is to stimulate the listener to fill in the blanks, a multiplicity of meanings does not detract from a story’s power. Having stacked the deck by crashing an all-too-human client into the wall, or exposing the adversary’s indecent and unmitigated hubris, the best trial lawyers give jurors space to come to the desired conclusion themselves.


The third element of narrative technique is context. To a novelist, the story world is comprised of two parts: back story and setting. Back story is where the protagonist came from, in both a physical and a metaphysical sense. How has life shaped her? Setting is the time and place in which the story is happening now (i.e.,when and where the events relevant to the lawsuit occurred). But context transcends time and place; a skillful narrative elevates the when and where to how and why. How is your character a creature of her time and place? Why have her culture and upbringing compelled her to react in certain ways? Context is the entire interior and exterior framework in which your protagonist acts.


The fourth principle is causation, also known as plot, action, story track, dramatic structure, and narrative thread. In a tightly constructed narrative, a central story question guides every beat. Turning points punctuate action, plunge the characters into deeper revelations, shatter expectations and reinforce theme. What does this mean for the trial lawyer as dramatist?


Compelling narratives are not necessarily chronological. What creates the momentum that propels the diabetes commercial from beginning to end? The story starts the moment we first experience the protagonist. We see him as he is now—or at least how we think he is, sight intact. Then the narrative moves backward in time and shifts to cause and effect: My doctor told me to change my lifestyle, I ignored him, blindness struck, now I walk with a cane. If conflict is the story’s beating heart, its mechanical engine is a cause-and-effect sequence of emotional reactions to events corresponding to the way real people behave. Emotional rather than logical coherence removes the story from a rote recitation of facts and structures it in a series of dramatic building blocks. The dramatic focus reinforces theme.


The improvisational nature of a trial can wreak havoc on the best-laid plans. Because trial lawyers tell stories through witnesses, the order in which the story is told is often beyond your control. Strategic considerations may lead you to establish a claim or defense through cross-examination rather than direct. Protecting the record on appeal may require introducing evidence that is not inherently dramatic and objecting at less than optimal moments. Saving your best shots for rebuttal is risky; what if the other side rests without opening the door? In the rough and tumble of trial, how does the lawyer create a coherent narrative thread that has maximum impact?


Opening with a thematic approach signals judge and jury to anticipate dramatic building blocks; closing in that vein gives them the satisfaction of knowing what they anticipated. This not only creates interest but reassures your audience that, regardless of sequence, there is a reason for every piece of evidence and testimony presented. Aiming for emotional coherence rather than a rote recitation of the elements of your case invites jurors to make your story their own. “Aha,” thinks the juror, “I knew it!”


The fifth principle of narrative technique is coherence. Having created a character to whom the listener can relate, subjecting her to pitfalls that would fell even the most superhuman of heroes, and having her emerge intact at the end, what does it all mean? How can the juror use your story to make his own lot better? Coherence recognizes the irony or ambiguity of life—a risk trial lawyers are trained not to take. What is the relationship between meaning and structure? More specifically, how does the trial lawyer create meaning from coherence?


Meaning is back-end loaded. Novelists learn that it comes from the story’s climax. Why else would a reader hang in till the end? Meaning comes from the emotional jolt of the changes the protagonist endures and what they teach us about life. Why do great stories loop back to the beginning? Because that structure creates a unity of purpose and drives the insights home. Consider the diabetes story one last time. Its purpose is to impress upon us how critical it is to follow our doctor’s advice. The most profound change the man has endured is not going blind, but moving forward with his life thereafter. The insight is that we must accept responsibility for our own hubris. The story loops back on itself to drive home that insight. His calmness as he reaches for his cane bespeaks a new courage, one that resonates deeply by making a mockery of the macho self-image that made him ignore his doctor’s advice in the first place. The story teaches that we are resilient.


After having shown the jury your case through live witnesses and direct evidence, you have an opportunity to tell the jury what it all means. Closing argument is not simply the last chance to make your case. It is the only opportunity to loop back to the opening premise and establish the unity of purpose that creates meaning. Here the key insights—what does this story teach us about life?—can be driven home.


Beginning novelists often complain that they cannot find their voice. Voice is not something that is taught, learned, or found. Voice is you. Storytellers get lost when they try to sound like somebody else; self-consciousness distracts both storyteller and audience. Strive not to make an impression; the strain always shows. Tell the story the way you think and talk, and jurors will cease being aware that it is you—or anyone else—talking.


Finally, when you construct a story, ask yourself whether it is honest. Do you, as a human being, believe it? Great storytellers are not frauds. The power of their stories comes from self-knowledge. The life experiences they recount resonate because their touchstone is both objective (factual) and subjective (emotional) truth. The more the trial lawyer understands her own humanity, the more she can appreciate the humanity of her clients and others in their struggles with life, and the more powerful her storytelling will be.


Stephanie Kane, a lawyer and novelist, lives in Denver, Colorado.


This article was excerpted from a longer one that appeared in Litigation, Volume 34, Number 4, Summer 2008 at page 52.


 

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