Lawyers need to tell a (Great) Story!
What’s a lawyer’s job then? To represent clients, provide legal advice, and uphold the integrity of the profession to be sure. But at the core of each of these functions, it’s really to tell a compelling story.
Storytelling is a common topic in leadership and marketing, but many lawyers write off this skill as irrelevant. They see their jobs as providing well-reasoned, objective legal analysis, and, when necessary, making arguments that support their clients’ cases. At the end of the day, though, cases are not always decided based on the law alone. A compelling story is a critical component of adequately and zealously representing clients, but this skill is not taught adequately in most law schools.
Why is storytelling so important?
Lawyers “grow up” speaking jargon and legalese in law school.
“My client substantially performed…”
“Opposing counsel failed to appear at the preliminary hearing…”
“The board of directors upheld its duty of good faith and fair dealing…”
Legalese has its place in the legal profession, but it cannot and should not be the lawyer’s primary method of communication. Law school teaches you to read the law objectively, separating the facts and the law. And, of course, objective analysis is and terms of art are essential for research, drafting briefs, arguing motions, and so on. But according to the ABA Journal, “in their formative years of learning to ‘think like a lawyer,’ many law students are fed a perpetual diet of edited appellate opinions—doctrinal pieces with the subtext of complex and compelling narratives removed or reduced to mere backstory.”
The stories that law students read in their casebooks are the result of months and months – if not years – of shaping a narrative, and the facts in the opinions are the judge’s final understanding of the parties’ stories. There is a push and pull effect, where each side tells their story and the factfinder reaches an ultimate conclusion. To effectively represent a client, zealous advocacy means you need to make the story as relatable and compelling as possible to convince the judge and jury to accept your side. A dry, objective chronology will not do the trick.
Who is storytelling for?
Storytelling is not just for trial attorneys. While it’s true that litigators tend to have a penchant for telling a compelling story, they’re not the only lawyers who need to learn this skill. Storytelling is a way to compellingly communicate your client’s story, whether representing a criminal defendant, leading a class action, or negotiating a partnership agreement. To make judges, juries, opposing counsel, business partners, buyers and sellers, or even the government, care about your client, their story needs to be relatable, easy to follow, and sympathetic. Remember that a case is more than a case; to your client, this is probably one of the most significant events in their lives or a business dispute that could cost them dearly. Whomever you represent, ensure you understand their role, plot, and perspective.
A case should have all the elements of a good story
Good stories all have the same elements. Classic novels, children’s books, Oscar-winning movies, and non-fiction narratives all need to conform to certain requirements, and so should your clients’ case.
Who is the main character of your story? Usually, your client is the protagonist, the hero, the “good guy.” Your goal is to make the client as sympathetic as possible. The way you present your client should always remain true to who they are, but by thinking a bit more deeply about what makes them unique or sympathetic, you may help their case along by providing much-needed context for the decision-makers who will ultimately be making a life-changing ruling about your client.
According to MasterClass, here are five tips to make the audience care about the main character (which apply to your clients as well):
- Establish where they came from. Give your audience the background on your client so they understand any relevant information that may shape the case. Does the client have a notable background? Are they inexperienced or expert? What is their track record?
- Figure out where they are going. Whatever your client’s case is, it’s a blip in a much larger life story. To maximize your client’s’ benefit, show the audience what your client’s goals and expectations are. Was he planning to open a small business, but no longer can because he suffered a breach of contract with a lender? Did your client want to start a family, but no longer can because of a medical misdiagnosis? While calculating damages is always a critical component of litigation and drafting, the numbers always need to be backed up by a story.
- Make them believable. As a lawyer, you owe a duty to the court not to bend the truth. There will be times when you represent a client whose story is not inherently sympathetic, but you need to find a way to tell their story in a believable but compelling way. People do not have to be experts to see when a client is being cast in a false light.
- Have them interact with supporting characters. Cases are rarely as straightforward as they seem in the law school casebook. There are often many parties and non-parties involved in the case. Your client is not the only person in the story, so make sure each party involved in the case has a clear role, and when you tell the story to the factfinder, make sure it’s clear how your client is involved with all of the other parties in the case.
- Give them internal monologue. While this tip refers to drafting dialogue, it has a clear application in the legal profession as well. As a lawyer, you are representative, surrogate, and advocate for your client. Lawyers are paid to do this because they are strong presenters, clear and objective thinkers, and understand the law. One downside to this, however, is that the client’s voice can get lost in the shuffle. While clients will testify from time to time, it’s important to keep their voice present in all that you do to represent them. Whether you have a client speak for themselves is a matter of discretion, but usually hearing a party speak about what happened makes their story more relatable.
But what if your client is not the superhero you want them to be?
Clients are normal people, not fictional heroes. Sometimes, their stories will not be as relatable or easy to empathize with. In these cases, think about how you can refocus the story to make the jury the protagonist. A classic example of this is Johnny Cochran’s strategy in the OJ Simpson trial. By the time OJ Simpson sat trial, the story that he allegedly murdered Nicole Brown and Ron Goldman had already been broadcast across the country. The publicity was inescapable, and the likelihood of Simpson’s legal team portraying him in a sympathetic light was slim. Instead, Cochran, Simpson’s lead attorney, shifted the narrative and made the jury the hero. Simpson’s trial, they argued, was a miscarriage of justice, and the jury had an opportunity to right the wrongs created by police misconduct, evidence tampering, and years of racial discrimination in the Los Angeles Police Department. Famously, Simpson was acquitted. Whether right or wrong, this was one of the most notable instances of legal storytelling in American history.
Perspective refers to the speaker’s point of view. Some stories are told from a first-person narrator, whereas some are told from a third-person omniscient narrator. Think about how you want to tell your client’s story. This will change depending on the type of case – do you want the audience to get inside your client’s head or look at the case from a birds-eye point of view? In some cases, it may benefit your client to keep the main argument an objective analysis of the law.
One of the most famous cases in American criminal history is Miranda v. Arizona, which led to the creation of Miranda warnings, now a line in every police procedural. The success of this case did not hinge on the Supreme Court’s sympathy for Ernesto Miranda.
In the book Fight of the Century, author Hector Tobar describes Miranda as “a pitiful, small-time criminal from central casting. Tattooed, lecherous, a hard drinker, and a drifter, he’d been in trouble since childhood. His first felony conviction came in the eighth grade, for car theft. The next year, he was arrested for burglary, then attempted rape. In the army, he got thrown in the stockade on a Peeping Tom charge.” The crime that led to Miranda vs. Arizona was a rape conviction based on a written confession. On its face, Miranda’s story was not bound for success.
Miranda’s attorney, John Flynn, turned the case on its head. This story was not about Ernesto Miranda himself, but about a criminal justice system that allows police to lie to and coerce suspects into writing confessions in violation of their Fifth Amendment rights. In his oral argument before the Supreme Court, Flynn reminded the court that the Fifth Amendment is no good unless the poor, mentally abnormal, and illiterate, like Mr. Miranda, are informed of their rights. Instead of telling the story from Miranda’s perspective, Flynn benefitted from a 30,000-foot view of the criminal justice system.
The facts behind your client’s story should be told in an accurate, compelling, and interesting way. Usually, this means chronological order. Your client’s case does not need to be a watershed criminal law case to be told in an interesting way. Whether you are arguing in front of the Supreme Court or taking a car accident case to binding arbitration, find a way to draw the audience in.
First things first: tell the story clearly and concisely. You can lose your listener if they get confused or lose track of who’s who.
Next, make the story relatable. Imagine you are representing a contractor in a breach of contract action. This might not be the most inherently interesting subject matter, but you should leave your audience asking, “the contract said what?? And then they charged how much??” Remind the listener that there are real people involved, and that they deserve to be made whole again.
Part of developing the plot of your client’s story is identifying the conflict. Every story has a conflict, whether it’s between people, between a person and society, or a person against themselves. In litigation, this is usually straightforward – simply look “across the v.” But not all client representations are going to be one-on-one litigation, and the conflict will not always be clear. This is part of your job as an attorney: to help the audience understand right and wrong. Even if you are representing your client in a contract negotiation, this is still adversarial in nature, and the way you position your client can have an impact on the outcome.
Themes or Morals
Each case should have a “moral of the story.” Consider the themes running through your client’s case and emphasize those throughout. Regardless of whether you’re representing a plaintiff family in a wrongful death case or a supplier in a breach of contract action, the story you tell should have underlying themes that resonate with the jury. Does your client’s case call for fairness or justice? Does it fit in the context of another legal trend? Are you trying to break from precedent and establish new law?
Literary devices, like metaphors, allegories, and imagery, can help an audience understand complex concepts by boiling them down into more simple examples. By using unique and memorable language, you can create a vivid image that makes your client’s story stick. This can come in handy when the jury is deliberating or a judge is making a ruling; your story goes beyond mere facts and makes the decision-maker remember how they felt when they were hearing the story.
Where is storytelling appropriate for lawyers?
Any time a lawyer is sharing information or arguing a point, it’s an opportunity for storytelling. While in court is the most obvious place. Of course, your stories must adhere to applicable rules of evidence and other rules of procedure, but always consider how you’re conveying information when arguing motions, making opening or closing statements, or conducting direct or cross-examination, as these are the times when the judge and jury are looking to be convinced.
Similarly, plea bargaining and settlement negotiations are another opportunity to use storytelling to convince a prosecutor or opposing counsel of what your client deserves.
Written storytelling is critical in the world of appellate work. Briefs form the foundation of the appeal, as well as the foundation for subsequent oral argument. Not only do the briefs have to be legally and factually accurate, but they also must present an interesting perspective and compelling argument.
And again, even in transactional roles, storytelling is important, whether you are negotiating a contract or a merger, applying for a patent, or writing a report of audit findings, remember who you are writing for, and tailor the story accordingly. Consider the process for applying for a pardon. In Pennsylvania, for instance, the client – either individually or through an attorney, must submit an application detailing what crimes they committed, what circumstances gave rise to those crimes, and how the client has changed their life since they were convicted or plead guilty. The success of a pardon application hinges on how compelling the client’s story is, but in drafting the story, the attorney needs to remember that this is not a criminal trial. You are not trying to convince the Board of Pardons that the client was innocent. Instead, the story should reflect the truth behind the conviction, and then provide a narrative about what makes that client unique and worthy of a pardon, such as community or public service, subsequent employment, and other evidence of self-improvement.
Finally, storytelling is also critical for lawyers both in their personal careers and in marketing. You need to sell yourself and your firm, not only your clients. Consider how you tell your personal story as a lawyer, as well as how you present your firm’s successes.
Judges are people too
In law school, we learn that judges are objective and rational. This is often true, but it is an undeniable fact that judges can be persuaded by emotion. The words you use in your arguments, briefs, and even informal conferences, shape the judge’s perspective of your case. Countless common law equitable doctrines were created by a series of sympathetic judges, who made law favoring someone with a compelling story, even where no such law existed. Think about the doctrine of unconscionability, for example. To establish unconscionability as a defense, the standard is sometimes stated as a contract term that “shocks the conscience….” The lawyer who made the first unconscionability argument must have told a really good story.
Tools you’ll need
To craft your narrative, set out the case chronology and argument, and prepare for depositions and trial, you’ll need a platform that lets you manage the evidence, and the key characters, facts, issues and events of the case. MasterFile lets you manage all the moving parts of litigation from A to Z within its story building platform – exactly what you need. Set out your narrative or brief right in MasterFile itself – substantiated by linked evidence, facts and events point by point – and bring your client’s story, its protagonists, perspective, plot, conflict, and theme, to life.