By Dr. Ken Broda Bahm:
Many hold that stories are essential to effective communication, and I am among them. Especially in litigation, there is a natural role for stories as a glue holding together the facts and the law, the ethics and the evidence, the logic and the persuasion. I believe that and apply it in my practice every day. So when I heard about Tyler Cowen’s TED talk encouraging people to distrust and to rely less on stories, I approached it with some suspicion. When I viewed the remarks on YouTube, it was with an eye toward refuting Dr. Cowen. As I listened to the economics professor’s remarks, I found myself rejecting some parts of his argument. Rather than being “a kind of candy,” “a kind of mental laziness,” or “a kind of self-deception,” it seems more likely that stories are an unavoidable part of cognition and the way we make sense of the world. But I found myself agreeing with other sentiments, like the tendency of stories to sometimes invent intention, and to make “the mess” that is life appear to be unrealistically organized and driven by clear plot lines. I considered the possibility that maybe we do rely on stories as a crutch, particularly in complex litigation, to simplify things that ought not be simplified. Then I thought, “Oh my god, what if he is right?” because up to this point in the blog post, all I’ve been doing is telling a story.
In the end, looking at the ways Tyler Cowen’s thoughts apply to narratives in litigation, I found some things to keep and some things to set aside. In this post, I share some thoughts on adapting storytelling to the legal realm, and importantly, adopting to a legal audience’s potential skepticism toward stories.
Tyler Cowen’s TED Talk
Taking a step back to look at Tyler Cowen’s TED talk, what stands out the most is the audacity of the topic. We live in a story-based culture. Stories are the water we swim in, and here is an economics professor standing up in what is quite often a storyteller’s forum, trying to avoid telling his own stories, and instead telling us that stories should be knocked off their pedestal. What a novel setting. What a courageous character. What a story!
Here is the clip, and true to the TED format, it is just sixteen and a half minutes (or, if you would rather read than listen, here is the transcript).
The Implications for Litigators:
Much of Dr. Cowen’s focus is on self-help books and advertising, but if he directed his attention to the role stories play in trials — a setting where evidence is supposed to be all that matters — it seems likely that he would aim as much or more of his criticism at us. Indeed, if we were to take his advice to “just imagine every time you’re telling a good versus evil story, you’re basically lowering your IQ by ten points or more,” it would be no time before most litigators would be reduced to simpletons. Sifting out the more useful from the less useful advice for courtroom storytellers leads me to three recommendations.
1. Tell Stories Anyway. Unless Dr. Cowen himself is seated in your jury, it seems a safe bet that your jurors, or judge or arbitrators for that matter, will be like the rest of us in finding it easier to organize and give meaning to information when it is arranged as a sequence with character and conflict, beginning, middle, and end. We think most readily about narratives in opening statement — a story about what happened and what the evidence will show — but closing argument is also a story, just structured differently. Closing argument is a story about the jury’s path during deliberations through the verdict form toward a decision in your favor.
2. But Adapt to Suspicion Over Stories. As much as we expect and enjoy our information in narrative form, there are some contexts where an audience’s perception that it is hearing a “story,” rather than some other style of presentation, is apt to raise skepticism. A courtroom is likely to be one such setting. If jurors ever suspect that the story is substituting for evidence, you lose credibility. That, however, isn’t a reason to forswear the story in favor of a bland recitation of the facts and the law. Instead, stick to the story, but make sure that your mindset is that, “this is a story, told in evidence.” At every key point in your narrative, preview or review the evidence that they’ll rely upon to know your story is true.
3. And Call Those Stories Out When There are Gaps. Dr. Cowen lands a solid hit in his observation that stories don’t handle happenstance very well, and instead must impose intentions on actions. “A story is not about spontaneous order or complex human institutions…No, a story is about evil people plotting together.” When these allegations of a “plot” are against your party in litigation, ask whether that is coming from the evidence or from the story. When an adversary is gaining traction on a point through narrative structure alone, it helps to call attention to that with something like the following:
What you’ve just heard is a very compelling story, told by a very talented lawyer. But the thing about stories is that they fill in gaps. They work with our imagination to connect dots where there might be nothing but space in between those dots. But this trial is about the best evidence, and not the most compelling story.
One case where the narrative might have played an ignominious role, true to Tyler Cowen’s criticism, is the well-known Casey Anthony prosecution for the murder of her daughter, Caylee. We’ve written on the fact that a key element for jurors’ finding of reasonable doubt was the possibility that Caylee accidentally drowned in a swimming pool. But that part of the story only lived in the Defense attorney’s opening and was never supported by testimony from Casey (because she didn’t take the stand), or from the only other supposed witness, her father George (because he denied it on the stand). Here, the prosecution should have given greater emphasis to calling out this critical gap where the story arguably played the role of evidence.
As long as stories are used to unify, to communicate clearly, and to make facts meaningful and memorable, then litigants are doing right by emphasizing them. If, however, stories are used to appeal to bias, to cultivate artificial sympathy, or to cover over evidentiary gaps, then attorneys in court risk having that strategy uncovered for what it is, and deservedly so.
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ourtcPhoto Credit: Robynlou8, Flickr Creative Commons