By Dr. Ken Broda Bahm:
It’s America’s case of the moment: Johnny Depp and Amber Heard, Hollywood’s former power-couple, now exchanging accusations of physical abuse in a Fairfax, Virginia courtroom. The defamation case initially brought by Depp has now centered on two starkly different stories about what went on in the marriage. At it’s heart, it is the traditional “He said, she said” circumstance, but read in the context of the #MeToo movement as well as a more subtle but emerging backlash against giving presumed credibility to anyone who alleges abuse, it has quite a bit more nuance to it. I have not been able to follow all of the details of the current trial, but I have had an opportunity to watch some of the testimony that has come in so far.
As unique as the case is, and however it turns out, it is a reminder of an issue that can be a factor in many to most cases: When it is a battle between stories, how do jurors decide which of the two is more likely to be the truth? Jurors can be unpredictable, but it isn’t entirely a crap-shoot on which story they will buy. Rather, there are some older concepts in the field of communication theory that serve as practical guides to what makes a story credible. “The Narrative Paradigm,” is a system popularized by the late Professor Walter Fisher of USC’s Annenberg School. The idea is one that fits neatly into practical legal persuasion and rests on the belief that humans are essentially storytellers and story-receivers who base decisions, not necessarily on logic, but on a perception of “good reasons” as conveyed in the stories we choose to accept. Specifically, Fisher says, there are two tests we apply to a story: narrative coherence, which asks whether a story makes sense, hangs together, and seems complete; and narrative fidelity, which asks whether a story rings true with what we already know or believe about the parties and the situation. In this post, I will take a look at each, using the dueling Depp-Heard stories as an example.
Two Tests for Any Story
The idea that we make our way through the world by accepting and rejecting stories is easy enough to understand and relate to legal practice. In court, jurors want to believe that they are making rational decisions, based on facts, evidence, and law, but it is inevitable that their understanding of events will be determined by the stories that they hear. When, as in the Depp-Heard case, there are conflicting stories, they need to decide which of those stories are more likely to be the truth. The sitting jury has a choice whether to align with Amber Heard’s story of a drug-addicted and entitled man prone to violence, or with Johnny Depp’s story of a controlling and personality-disordered woman who instigated violent attacks and then invented abuse allegations as a form of revenge.
Narrative Coherence: Does the Story Hang Together?
Broadly, the first question is one of internal consistency. When a teacher needs to decide if a lost-homework story is valid, he may not have access to an external way to see if it checks out, but can decide whether the story makes sense on its own terms. While the CourtTV viewing public will not always understand why attorneys will dig so closely into the details of a story that they don’t believe, the test for consistency explains it. We may not be able to conclusively show “it didn’t happen,” or prove the negative in that way, but attorneys do know that if there’s a specific piece that doesn’t fit, then the jury has reason to doubt the reliability of the whole story.
For example, jurors saw Amber Heard’s lawyer hold up a particular brand of cosmetics while saying that this is what his client used to conceal scars, even getting specific about how she would mix the makeup on different days of a bruise’s development. When, a few days later, the company clarified that the product was not manufactured until over a year after the couple’s divorce, that creates a coherence problem in the story. Rationally, she could have used any makeup of course, but why would she identify a particular brand if that brand couldn’t have been the one she used? Broadly, the task of undermining a story comes down to finding as many of these internal faults as possible.
Narrative Fidelity: Does the Story Fit With What I Already Know or Believe?
The second test comes down to external consistency: Is the story, if accepted, consistent with everything else that we know or believe that we know about the characters, the circumstances, the events, and the world? In other words, does this story jibe with the other stories that we have already accepted? For the teacher deciding on the lost homework excuse, it means viewing the story with an eye toward what else we know about the student: Is this the first lost work from an otherwise excellent student, or is this one of many gaps in the student’s history? In legal persuasion, this is the question of source credibility.
In Johnny Depp’s case, for example, Heard’s lawyers have dwelled on the question of whether his claims of being a victim of violence are consistent with texts he sent to a friend later about drowning, burning, and otherwise assaulting his ex-wife. And, of course, in a prior generation, some jurors could find it simply lacks fidelity for a man to be claiming to have been the victim of a smaller woman. Even more basically, to some there is also the question of whether individuals who we feel we know from seeing them on the screen could ever be guilty of heinous actions.
We don’t know at this stage which story jurors will buy in the “Depp Said/Heard Said” contest. But we do have good reason to believe that they will apply some predictable principles of storytelling. For attorneys in all cases, there are practical benefits when assessing your case, when laying out your story in opening, and when planning your witness’s direct examination in applying these principles to both your story and the story on the other side: Does it hang together, and does it fit with what we already know.
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Other Posts on Narrative:
- Reduce Resistance, Tell Stories
- Tell a Story with Your Transactional Documents
- Add a Plot Twist to Your Trial Story