By Dr. Ken Broda Bahm:
So you have worked up your case for trial and, now the question is, what is the best way to convert all of that factual detail and law into comprehension and persuasion? The answer you’ve probably heard since your first trial advocacy class is, “Tell a story!” And that’s the right advice. But there is a difference between good and bad storytelling. What trial lawyers want is a story that pulls jurors in and circumvents the natural skepticism they bring into the courtroom. There are many techniques for doing that while developing or delivering the story that is the core of your opening statement, and all litigators who are experienced in giving them likely have their own favorite tricks. Based on the opening statements that I have helped draft, here are seven of my favorite techniques for improving the stickiness of the story.
1. Describe a Scene They Can Visualize
A big part of what makes a story immersive is the ability for the audience to see and not just hear it. A good storyteller will use images and language that helps listeners create a picture in their own minds:
Mr. Smith sat in his doctor’s office, just across the desk from him. The information — this pamphlet and this checklist — was on the desk in front of Mr. Smith. He had reviewed it the night before at home. Now, the two sat together, in the morning in a quiet office, and made the decision. Mr. Smith paused, then said, “Yes, let’s do it.”
2. Arc It
Beyond just conveying sequence, a good story should also rise and fall. The traditional narrative arc starts with exposition, then introduces an inciting incident of some kind. Action rises toward a climax, and then falls back toward a resolution of some kind.
First, let me set the scene for you…
Everything changed when…
And this was all fine for awhile, but over time, problems started to mount…
And it all came to a head one day…
And in the aftermath…
Which takes us to the decision in front of you today…
3. Link It to Experience
A good story also connects to a listener’s experience, calling to mind some link or item of common ground:
We’ve all been in that situation: thinking that something is too good to be true. So what do we do? We consider the source. We double and triple check all the details. We make sure that our doubts are resolved before we go forward. That’s what we do, and that’s what my client did.
4. Tell the Story in Present Tense
One simple technique to increase interest and involvement in a story is to tell it as if it is happening now, switching all of the past tense verbs (“saw,” “knew,” “did”) to present tense verbs (“sees,” “knows,” and “does”).
So Mr. Jones decides to buy the product and he comes home. The first thing he does is put it together. He doesn’t read the instructions, he says, because it is “clear enough how it is supposed to work.” He immediately starts an intense workout using the product. And he uses the product in a way it’s not designed to be used, a way that the instructions specifically warn against and, no real surprise, he is injured in the process.
5. Don’t Necessarily Start at the Beginning
The simplest way to understand a story is through linear time: the beginning, the middle, and then the end. But that sequence doesn’t always highlight the key event or the perspective that you want the audience to take. To create an alternate focus, consider beginning at some other place.
There is a moment when the realization finally hits her: The company has been lying to her about their plans, and they’ve been doing that so that she will take the deal that reduces her royalties…
And to find out how it got to that point, let’s go back to the original working relationship between Ms. Smith and the company, and go back to the original deal…
6. Be Creative on the Main Character
Every story needs a central character, and it is natural to think that this character should be your client. But that isn’t always the focus that puts your case in the best light. Personal injury plaintiffs, for example, often don’t want the story to be about a tragically injured individual as much as they want it to be about a careless business or about a professional’s choice to set safety aside. But the main character can also be more abstract, like “the market,” for example:
It had been a pretty troubled time back in 2008. Housing, banking, public sectors — all in deep trouble. The market is trying mightily to come back, 2008 to 2010, but facing a lot of obstacles, and it is slow going. That is what is happening on center stage as the two businesses in this case try to resolve a deal.
7. Break It Into Chapters
When the story is long and detailed, as it often is in complex litigation, then any tool for simplifying is welcome. One tool that doesn’t sacrifice necessary detail is the step of simply breaking the story into chunks. For this to work, the divisions need to be clear not just in your notes, but clear to the listeners as well. Explicitly calling them “chapters of the story” can help.
The first chapter of the story finds everything going well…
In the second chapter, however, there are some signs of tension…
By the third chapter, the conflict has broken out into the open…
And in the fourth chapter, SmithCo has settled on their solution: Breach the contract…
The main thing for litigators to keep in mind is that the story usually isn’t obvious, simple, or self-evident. It isn’t a perfunctory step to simply tell the jury what happened. Instead, there is a fair amount of art to it. The same story can be told countless ways, so give it some thought, get some advice, and do some testing in order to figure out the best way for you to tell it.
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