Several years ago, the San Francisco district attorney’s office was prosecuting a case against two lawyers whose Presa Canario dogs had killed a 33-year-old woman, a resident in their apartment building.
The case involved many dramatic elements: monster-sized dogs, white supremacists, death threats, alleged meth labs, and, of course, the tragic death of an innocent woman. It also involved some tricky legal concepts, including implied malice and the various degrees of murder convictions.
The prosecutors’ challenge wasn’t only to prove to the jurors that the defendants had known their dogs could kill. It also was to tell a story about the crime that would both convince the jurors of the veracity of that story and keep them engaged throughout the trial.
A good story is key to any trial—not just the most dramatic ones. That’s because stories are the deepest and most obvious way that humans organize, communicate, receive, and digest facts. Since prehistoric cave dwellers painted narratives on walls, all human cultures have told stories—to entertain one another, transmit ethical and religious beliefs, and explain natural processes.
Today children still beg for stories (in the form of books and videos) even at very young ages. And despite a much-decried decline in reading, grown-ups also still consume copious numbers of stories—as books and periodicals, dinner party and office chatter, films and plays and television and radio programs. If reading is in decline, storytelling definitely is not.
Every legal case has its narrative. But there’s a difference between reciting a narrative and telling a good story when you’re in court. A good story in a trial has all the elements of a good story in other mediums, including: a coherent beginning, middle and end; character development; foreshadowing; metaphors; scene setting; dialogue; shared assumptions (or values); and the telling of stories within stories to explain factors like motive and prior knowledge.
A good story in a legal setting includes other elements, too, such as credible case themes and enough graphics, analogies and suspense to simplify complicated information.
In other words, a case story should never be just a recitation of facts that ends up sounding like a train schedule or a technical article. Instead, it should communicate the facts in the way you want the jurors to understand them—because in the absence of that well-told narrative, jurors will take your facts and make up their own storyline. And that may not square with your version of the truth.
A good story also provides what I call toeholds of understanding for your jurors. The human mind learns by relating new, unfamiliar information to concepts it already understands. If your story starts with such familiar elements—(think archetypal characters, natural processes, even household gadgets) your jurors become confident that they can understand more complicated details, even if these details involve intellectual property disputes, securities law or the difference between express, actual, and implied malice.
Moreover, a good story is also told in the right order. For instance, case events may be best told in chronological order (generally the easiest storyline to craft, but not always the most interesting). Alternatively, it may be better to use “in media res”—the term coined by Homer to mean “in the midst of things” or in the middle of all the action.
In the dog-mauling case, for example, we suggested that the prosecutors start at the end of their story. That’s because the prosecutors wanted to build some suspense (a hallmark of any good story) into this already dramatic trial. But there was no suspense in how the story would end—the jury already knew that the victim was killed by the dog. Instead, the suspense had to do with determining how long the defendants had known that the dog could kill. (The defendants claimed they had never known; though evidence ran to the contrary.) So the prosecutors began their story with the death (marked on a timeline with a big red triangle) and worked backward to show what the defendants knew two days before the killing, a week before the killing, two weeks earlier, etc.
When we were done, thirty-three red triangles—each of which indicated an incident where the dogs displayed violence—stood out on a timeline that stretched back for months. By telling the story in reverse, the prosecutors effectively convinced the jury that the owners understood the dog’s violent nature all along.
Finally, telling a good story entails being confident enough of your case’s basic themes to introduce them at the beginning of the trial, not at the end. Indeed, one of the biggest mistakes I see litigators making is telling the story from the inside-out, rather than the outside-in. By that I mean that litigators tend to explain all the details of a case before explaining to jurors just what those details point to—a familiar theme, for instance, of greed, betrayal, or ambition run amok.
Of course, litigators do this because that’s how they master their cases; using standard tools of inductive reasoning, they first figure out the details and then develop the core themes. That is, they go from the specific to the general. But presenting a case this way to jurors is a mistake. Most humans are far more comfortable with the core issues of a case (e.g., themes, motives and moral dilemmas) than the myriad details of, say, the uber-market for mortgages and why it’s melting down. Taking a deductive approach, by telling your jurors what the core theme of a case is right off the bat, empowers them to master the supporting details bit by bit throughout the course of the trial.
Remember, too, that your story has to be good enough to be told well three times in the course of trial: in your opening statement, during the case-in-chief (although this story will be interrupted with questions, delays, and objections), and in the closing argument. These re-tellings help you in two ways. They provide an opportunity for constructive repetition (in itself an important teaching technique). They also allow you to tell your story different ways, which gives you a greater chance of appealing to the many different backgrounds and learning styles your jurors bring to the jury box.
Why is this important? Any lawyer who thinks that his or her way of analyzing and understanding a given set of facts is the only way is likely to alienate large portions of the jury. That’s not constructive in a system where you prevail only by convincing a majority of your jurors that you’re right. Besides, lawyers bring to their analyses highly specialized training that most jurors have not had. As such, most jurors learn and process information differently than attorneys do.
Granted, learning to find and tell a good story during trial is more work than just reciting a bunch of facts or narrating a blow-by-blow timeline. But I can promise you this: It will make your case more interesting (both for you and your jurors). It will make your presentation more engaging. And it will make it more likely that your side will prevail in the end. Trial lawyers who take the time to determine what their case story is about—and the best way to tell it—have a distinct advantage in the courtroom.
This article appeared in the San Francisco Daily Journal on August 8, 2008.
Appeared in The San Francisco Daily Journal
August 08, 2008