By Dr. Ken Broda Bahm:
It is safe to say that the advice to use narrative in litigation can now be considered common knowledge. In many ways, it has sunk in: You won’t meet a litigator who hasn’t been told to “tell a story” through their case. But in some other ways, it hasn’t sunk in enough. Too often, I see litigators who will tell the story during one segment of the opening — a section focusing on “Here’s what happened,” or introducing a timeline, perhaps. But this story is disconnected from the rest of their case. They don’t fully embrace the narrative as the central and dominant way of presenting and connecting the facts. They may include a sequence (this occurred, then this…) but without the full arc and the other elements that we recognize in a tale worth telling. This is what I call the problem of the “nominal narrative” in an otherwise analytical and issue-based message.
Instead, what litigators need is a real commitment to narrative as the full structure of their message. There is an interesting new study out of Berlin (Barron & Fries, 2023) to back that up. Using a role-playing experiment, this study of behavioral economics was conducted in the context of giving and receiving financial advice. The researchers found that financial advisors were most successful in altering the behavior of investors when the advisors used narratives to connect and make sense of a set of known facts. That view of narrative, not as a stand-alone story, but as a subjective way to connect and add meaning to objective information strongly parallels the way attorneys should use narratives. They also found that various ways of trying to “protect” the audience against the use of narrative, including revealing the advisors’ full incentives, did not tend to work. As the researchers note in a pithy conclusion, “We find that narrative persuasion is difficult to protect against.” In this post, I will look at this research and its implications.
The Research: Narratives Equal Persuasion
Using randomly matched pairs including an “advisor” who is incentivized to either encourage or discourage an investment, and an “investor” who is incentivized to make the right pick, they also supplied a set of facts – objective historical data indicating years when a fictitious company was or was not successful. The advisor then created a narrative to make sense of that data and, based on the advisors’ incentives, to either encourage or discourage investment in that company. The researchers found that advisors would predictably tailor their narrative to make sense of the available data, to appear plausible, and to align with their objective. The narratives with the best fit to the facts were also the most persuasive. The team concluded, “Our results indicate that narrative persuasion can be highly effective,” reasoning that it is likely even more effective in the hands of subject-area experts, including “lawyers who weave a story through the evidence to persuade a jury.”
The Implication: Stories Aren’t Just a Technique, They’re the Vital Connective Tissue that Holds the Facts Together
What is unique about this research study is that they didn’t just compare messages with and without narrative structure — the classic experimental design — but rather they looked how the narratives emerged and were used. In a setting where the players had access to a common set of facts, they found that the story served as the critical way to connect those facts together and to make them meaningful. Accordingly, they note, “Narratives are sense-making devices.”
Now, it also needs to be said that, at least in the context of the financial advice scenario that they studied, the authors found the effectiveness of narratives to be disturbing in the sense that a good story could end up justifying a bad investment decision. Thus, they say that in this setting “It is non-trivial to protect individuals from this form of persuasion.” Ultimately, however, the power of the stories were stronger than the “protections” that they tested. Even knowing that the advisor has a self-interest, as the attorney does, didn’t limit the narrative’s usefulness.
This means that litigators shouldn’t just treat the narrative as a “moment” during the opening statement, but should instead see the story as a vital way to connect the facts. When planning for trial, you should:
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- Know your master story as early as possible.
- Craft a story that includes the key narrative elements: setting, actors, action moving toward a goal, a climax, and a resolution.
- Use your story to guide discovery and to fill in the details.
- Structure your opening and your case generally along the lines of that story.
Following that advice, there really won’t be any time during your case where you aren’t telling a story.
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Other Posts on Narratives:
- Understand Narrative: Why People Watch Disaster Movies During a Disaster
- Account for a Motivation to Discount the ‘Official’ Narrative
- Sequence Your Trial Story: Five Non-Linear Arcs that Change the Emphasis
- Apply Two Tests to Any Battle Between Stories
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Barron, K., & Fries, T. (2023). Narrative persuasion (No. SP II 2023-301). WZB Discussion Paper.