By Dr. Ken Broda Bahm:
In legal settings, the emphasis is often on the positive act of giving arguments and evidence for a given outcome: Share the proof and the reasons to believe, and let those appeals work their magic on your audience. But there is also a flip side to that. Persuasion can also be thought of as negating the reasons against your preferred outcome, or reducing the barriers that your fact finders might have and the obstacles that would make it harder for them to side with you. As I’ve written before, the first set of strategies are often called “alpha” strategies, while the second set are “omega” strategies. And a legal setting seems particularly ripe for the omega side. After all, your jury or judge knows that you are contractually aligned with one party, and motivated to support that party’s interests whatever the facts might be. They’re likely to want to resist that. In addition, you have opposing counsel whose main motivation is to give your fact finders reasons to doubt everything you are saying to them. The result is that as you offer your messages, themes, and arguments, you’re likely doing that in a context in which your audience is mentally counter-arguing every one of your points.
Your persuasive success might depend on quieting that critical voice in their heads. So, how do you reduce that counter-arguing? One of the best ways, according to the research, is to tell a story. By framing your information, not in arguments or legal analysis, but as a narrative, you are inviting your listeners to experience the actors, the conflict, and the plot in linear time as a story. In the process, you are increasing the chances that they’re listening just to understand, and not listening in order to refute. Recent research (Frazer, Robinson & Knobloch-Westerwick, 2021) adds to the evidence that not only do stories work to reduce counter-arguing, but also that it doesn’t matter whether your audience knows that your intent is to persuade. Even when there are clear signals that your purpose is to influence their attitudes (as there are in a courtroom), telling stories still helps to reduce counter-argument and to promote persuasion. In this post, I will take a look at the study and its implications on the importance of courtroom stories.
The Research: Stories Work, Even When Purpose is Explicit
Researchers at Pennsylvania State and Ohio State conducted an online study in which participants reacted to arguments on a number of controversial topics: immigration, abortion, healthcare, and the death penalty. Aiming to get a better understanding of the unique ability of narratives to reduce counter-arguing, they varied whether the arguments were presented as a story or not, with clear protagonist characters and dialogue in the narrative versions. They also varied whether the stories were presented as true stories, and whether they were presented with the explicit intent to persuade or not.
They found that narrative presentation the narratives led to greater attitude change by suppressing counter-argument, both when measured immediately, and when measured later in a follow-up session:
Humans who are deeply engaged with story characters and their experiences (through the process of identification) are not able to step outside the story to generate counterarguments against persuasive messages because they are vicariously living the story through the character. Similarly, people who are absorbed/transported into a narrative world lack the cognitive ability to simultaneously argue against any persuasive subtexts in the story.
They also found that it did not matter whether these stories were presented with the explicit intent to persuade or not, so we can infer that that the power of a story isn’t weakened by the fact that it is coming from an attorney who just wants to use it to prove her case.
Finally, this effect persists regardless of whether the narratives are presented as true stories or not. While it is unlikely any litigators will want to embrace fictional stories, it does speak to the power of story that, even when listeners know that a story isn’t true, they are still drawn in.
The Implications: Tell Stories (More Than You Already Do)
Trial lawyers have generally gotten the simple message that they should tell stories. Still, listening to many opening statements, I often hear a little story and a lot of analysis. I call it the “nominal narrative,” in the sense that there are some story elements, but not enough to truly maximize the chances for reduced counter-arguing and increased influence. Here are three pieces of story advice that should be taken to heart.
Make the Story More Than Just Sequence
Sometimes I think lawyers assume that the fact that they have a timeline means that they have a story. But think about the stories that we actually want to watch on the screen or read in a book: They have setting, character, conflict, resolution, and probably a moral on why it all matters. They have a narrative arc that engages the audience. The stories you tell in trial should have all of those elements as well.
Make the Story the Main Envelope
In the briefing phases of litigation, I think lawyers often develop the habit of telling the “what happened” part quickly and simply, before getting to the “real issues” that matter to the judge. Sometimes they will continue that habit when it comes to opening statement, relegating the story to just a few moments in in the overall presentation. I think the better approach is to make all, or nearly all of it, the story. For example, introduce the parties, the conflict, the law, and the witnesses, all at the point that they enter the story, not as separate content. Here’s one way to think about it: Whenever you are not telling a story, your target audience is likely to be devoting greater counter-argument to whatever you are saying. So try to minimize those non-story moments.
Tell Stories to Judges and Arbitrators too.
Lawyers sometimes see narrative as a “jury thing,” and forget that a human fact-finder with legal training is still human, and humans still do better with stories. In fact, we are likely to increase the level of detail and complexity when presenting to judges, mediators, and arbitrators, so for them the story framework might be more necessary as a strategy for understanding and retaining all of that detail. In the past, we have asked national samples of judges and arbitrators, and among both groups, more than three quarters say that, compared to what they typically see in litigation, lawyers should be telling stories more. And in this case, because you are dealing with trained counter-arguers there is likely to be greater benefit in getting them to suppress that habit a bit and just listen to the story.
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Other Posts on Storytelling in Trial:
- Learn Visual Storytelling from the Second Impeachment Trial’s “Day in the Life” Video
- Improve Your Storytelling: Seven Ways
- Take Some Storytelling Lessons From Pixar
Frazer, R., Robinson, M. J., & Knobloch-Westerwick, S. (2021). Narratives’ Impacts on Attitudes: Do Signaling of Persuasive Intent and Fictionality Matter?. Communication Studies, 1-19.