By Dr. Ken Broda Bahm:
Stories require more than sequence. They require a sense of place, a tone, and a texture. Even when told without prepared images or video, a good story requires language that helps the mind “see” and not just comprehend the action. There is one study that perfectly captures this point (Tversky & Kahneman, 1983). Participants were asked to rate the likelihood of an occurrence within the next ten years. For one group, that occurrence was a massive flood somewhere in North America in which more than a thousand people drown. For a second group, the occurrence was an earthquake in California causing a flood in which more than a thousand people drown. The second scenario is obviously a subset of the first, so its likelihood is logically smaller. Yet study participants rated the second option as 50 percent more likely. Why would adding details to the scenario increase rather than decrease its perceived likelihood? Because it makes it more of a story. Instead of just a category of an event (a flood), we have a place and a cause (California and an earthquake). Just identifying those features makes the event more probable in the mind’s eye.
That is a small example of a situation in which even a small amount of movement in the direction of a story can have a dramatic effect on an audience’s perception. It carries an important lesson for litigators: You should tell stories not just because they organize, simplify, and gain attention. Stories do all of that, but more fundamentally, stories go to the heart of perception and simply make the experience more “real” for the listener. Yet this reality doesn’t always translate into the courtroom, and even with the widespread acceptance of narratives in trial, the stories sometimes fail. This post looks at some of the reasons for that and provides suggestions for making sure you’re getting the full advantage of a storytelling approach in trial.
Don’t Just Rely on the “Nominal Narrative” in Trial
By this point, it has become gospel among experienced trial lawyers: Tell a story in trial! It is a sign of how far we’ve come that this advice, once new and edgy, is now considered an obvious truism. But the enthusiasm for trial stories espoused in CLE programs doesn’t always match what we see in mock trials and in the courtroom. Sometimes attorneys have committed to a story only nominally. That is, it may technically be a story (because it has characters, sequence, and conflict), but in all other ways, it lacks the features that define a story. It lacks the texture and the detail that makes for good drama, and ultimately it sounds more like C-Span than The Movie Channel.
The signs that the narrative is only nominal are as follows:
- Only one section of opening statement is told in a story format.
- It is hard to identify who the main character is.
- Witness outlines don’t follow the story order set up in opening.
- The language is legal and would sound out of place in a novel.
- Listeners would be hard pressed to close their eyes and visualize what you are saying.
The problems with following the narrative only nominally is that you aren’t taking full advantage of the power of the story. You aren’t engaging the jury or judge, and you aren’t using the power of the narrative to not only clarify, but to persuade as well. In order to make sure you are truly telling a story, let me suggest a few steps.
Convey Sensation and Action
Recent research employing brain scanning technology reveals that stories do more than tell us about something. Instead, a good story immerses us, activating the same parts of the brain that would be activated if we were actually experiencing what is being described. A review in the New York Times, for example, points to research showing that the use of words like “perfume” or “coffee” actually lit up the primary olfactory regions of the brain, while describing motions like “grasped” or “kicked” engage the motor cortex that regulates physical motion. The brain isn’t making a strong distinction between hearing about sensation or action and engaging in it.
This provides a strong reason to bring your legal language down to earth and to use words that engage the senses and convey motion. To take a case example, you could say, “the defendant’s communication resulted in the intentional infliction of emotional distress.” But saying this would be better: “Reading the letter, she is hit with a wave of nausea, it feels like the floor is vanishing beneath her feet.” Presuming that it is supported by testimony and isn’t pure artistic license, the more visual version is better because it invites the listener to see and feel it as a story. It is also better to speak in the present tense (“she reads the letter…”) in order to encourage that vicarious experience and visualization.
Include Legally “Irrelevant” Detail
“It was about 6:30 p.m., on a warm summer evening – the perfect kind of evening for baseball. And when Jason Jackson stood on the pitcher’s mound, wound up, and released his famous fastball, the ‘ping’ that he heard in response from the aluminum bat was probably his last conscious experience.”
Many of those factors won’t matter to the legal claims of the case. The time of day, the temperature, the pitcher’s fast ball, and the sound of the bat probably don’t contribute to proof in a material legal sense. But if the goal is to promote visualization, then the details that relate to the senses and to action will help the audience to set the scene.
But Don’t Get Carried Away
The power of a story is good enough that Psychology Today calls it a “recipe for creating false memories,” when a story is repeatedly visualized. In trial, of course, the elements of accuracy and credibility need to be present as well. There is a point where you are laying it on too thick. If you were, for example, to add to the scene described above the “pleasant smell of backyard barbeques wafting over the baseball field,” or the “laughter of nearby children playing a game of tag,” then jurors, judges, and adversaries would rightly wonder if the description stems from the evidence or is a product of pure invention. The law places unique demands on storytellers in the courtroom: There is the expectation to prove what you say as well as the understanding that an advocate is trying to influence us. That suggests that trail lawyers shouldn’t avail themselves of full artistic license, but should instead restrict themselves to the level of detail that is supported in discovery. When conducted well, however, that still provides plenty of detail to flesh out the story and make it visual. Ultimately, the best techniques for working that detail into a story are those that don’t call attention to themselves because they are parts of normal conversation: present tense, action words, sensory references.
Because I’m writing this post on Father’s Day, I want to end by pointing the reader to a recent piece on MSNBC online detailing a father’s struggle to help his daughter battle back from the severe brain injury she sustained in a car accident. It is a searing story of adaptation, commitment, and love. But the most interesting part is that it is told in two ways: a video segment, and a written story. Kelly Deutsch, in the LinkedIn group “Leadership for Lawyers,” asked whether the written version or the video version was more powerful. It is a good question and the answer isn’t obvious. The video provides a portrait of the daughter’s progress that you don’t get in the written story. But at the same time, the written version is the more complete story, and contains critical background and vivid detail. If you’re interested in seeing an example, it is worth taking a look. The lesson is not “always use video,” but “always communicate in a way that can be visualized” and that applies whenever we want to fully engage and immerse the listener.
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Other Posts on Storytelling:
- Your Opening: Tell It Like a Story, but Tailor It Like a Strategy
- Find the “Universal Morality” in Your Case Story
- Don’t Put “Story” on Too High a Pedestal
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Tversky, Amos; Kahneman, Daniel (1983). Extensional versus intuitive reasoning: The conjunction fallacy in probability judgment. Psychological Review, Vol 90(4), Oct 1983, 293-315. doi: 10.1037/0033-295X.90.4.293
Photo Credit: Christina Renee, Flickr Creative Commons