By Dr. Ken Broda Bahm:
It’s said that there’s a story hiding in every case. And sometimes, depending on the attorney’s style and habits, that story can be hiding pretty darned well. An emphasis on presenting based on accumulated facts within a topical division of issues — a style taught in law school and prized in briefing — can end up submerging the basic story at the heart of the case. Even when a timeline is used, the key hallmarks of scene, character, and plot that distinguish a simple sequence from a story are often missing. In the continuous stream of facts, dates, documents, and data, the central chunks or chapters of a story can also be buried.
Whether the case is complex or simple, all litigators face the challenge of finding and conveying their case story. In encouraging trial lawyers to take that step, I’m inspired by a method shared by Dr. Kevin Boully. What he does early on in his work on a case is to use his notes to boil down the central narrative into a very quick three or four sentence story. Supplying my own take on that, I would like to use this post to propose a simple Q & A format — a worksheet of sorts — for lawyers to use in arriving at their own simple story at the core of their case.
Four Simple Story Prompts:
Previously, I’ve written about some of the classic story stages — scene, obstacle, and triumph — as well as the need to find a narrative arc within your trial story. In this post, I’m going to take a simpler focus on the most basic story components: the pieces that litigators should be able to identify without too much thought, and pull together to provide a quick thumbnail of the case. It boils down to four questions:
- Who?
- Did What?
- With What Result?
- And With What Unmet Need?
Who?
The ‘Who?’ or central actor in the story accommodates both a protagonist (a ‘White Hat’) and an antagonist (the ‘Black Hat’). The protagonist in your trial story is most obviously your client, but it also might be more of a condition (like a free market) or even an abstract idea (like personal responsibility). The antagonist is also most obviously the other side, but could also be represented more abstractly as an idea or circumstance, and more personally as one or more individuals within the larger group on the other side.
Did What?
The central action of your story might be taken by either the antagonist, the protagonist, or both. This is the step that contains the actions that lie at the heart of the reasons for litigation in the first place, and the main focus for either praise or blame. The “action” in this case can also involve a failure to act, or the choice of one path from among a variety of other paths.
With What Result?
Cases are about consequences. In criminal cases, those consequences are measured in victim impact. For civil plaintiffs, the consequences take the form of a tort, a breach, or some other loss. And for civil defendants, the consequences are framed differently: a best effort, a tragic accident, or a costly lesson.
And With What Unmet Need?
This part is unique to a litigation scenario, and critical. Trial stories by nature are incomplete and unfinished. The most important part of the story is the ending to be supplied by a jury or judge. For the criminal prosecutor, the unmet need is always “justice,” or the act of setting the scales right again. In a civil context, the unmet need will be more broadly focused on the kin of justice: fairness or equity, or on the need to send a good message, or avoid sending a bad one.
Three Examples:
These quick story elements are best understood through examples, so let me share three:
A Professional Malpractice Defense Story:
Who?
Protagonist: An experienced and thorough doctor.
Antagonist: An illusive and hard-to-diagnose illness.
Did What?
The doctor searched for a cause of Ms. Smith’s symptoms based on those that presented and based on the greatest likelihoods.
With What Result?
He still missed the diagnosis — a diagnosis that would have been missed by most or all careful doctors.
And With What Unmet Need?
The need to understand that, based on the complexity of disease and the human body, a perfect diagnosis is still not guaranteed.
Putting It All Together: An experienced and thorough doctor was faced with an illusive and hard-to-diagnose disease. He searched for a cause based on Ms. Smith’s symptoms that presented and based on the greatest likelihoods. Unfortunately, he still missed a diagnosis that would have been missed by most or all careful doctors. That goes to show that, based on the complexity of disease and the human body, a perfect diagnosis is still not guaranteed.
A Products Plaintiff Story:
Who?
Protagonist: The father (plaintiff) who is a careful driver and careful with his equipment.
Antagonist: An executive (Brown), who led the tire recall: one bad link in an otherwise good company.
Did What?
Executive Brown took the easy way on a national recall, sending a few notices instead of notifying all tire sellers and buyers.
With What Result?
A tragic and preventable collision.
And With What Unmet Need?
Companies need to get the message to take every safety recall seriously.
Putting It All Together: A father, careful with both his car and his driving, experienced a tragic and preventable collision caused by executive Brown’s decision to take the easy route instead of the complete and careful route when recalling the tires. Brown just sent few notices instead of notifying all tire sellers and buyers. Companies need to get the message to take every safety recall seriously.
A Patent Story:
Who?
Protagonist: American ingenuity, as protected by U.S. Patents, and as represented by innovators like ClientCo.
Antagonist: Copycat companies, like DefenseCo, who try to take the easy way instead of the innovative way.
Did What?
DefenseCo tried to adopt ClientCo’s innovative idea instead of coming up with an idea of their own.
With What Result?
DefenseCo infringes, which deprives ClientCo of market-share and undermines American ingenuity.
And With What Unmet Need?
Juries need to enforce the rules of fair competition in order to protect American innovation.
Putting It All Together: American ingenuity, as well as companies like ClientCo, are under attack by copycat companies who would rather steal an idea than creatively come up with one. One such company, DefendantCo, took the easy way out by trying to adopt ClientCo’s innovation. But they infringe ClientCo’s patent, and that infringement deprives ClientCo of market share, and also undermines American ingenuity. Fair competition requires that companies follow the rules.
Note that none of these stories are fleshed out. Instead, these thumbnails just represent the basic architecture at the center. The stories will only be convincing and involving once the details and the evidence are added. But still, thinking about that simple core is an important step toward knowing what moves the story forward and what helps to keep it comprehensible and compelling.
Go ahead, try answering those questions for your own current cases.
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Other Posts on Story:
- Find Your Closure
- When You Think “Story” Think “Structure”
- Take a Lesson from the Casey Anthony Verdict: It Is the Story, and Not Just the Evidence
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Photo Credit: 123rf.com, used under license