The art of legal storytelling
10 September 2007
Legal storytelling is the process of constructing scene-setting stories for the courtroom. Practised and taught widely in the US, it is largely ignored in the UK, to our detriment.
That's because stories win cases. Trial lawyers usually acknowledge the usefulness of stories: we say that a speech should tell a good story and we recognise the need to get a witness to tell a clear story in examinationin-chief. We might even appreciate that our cross-examination questions should advance our client's story. But we could do much more.
Too few of us fully understand the power of a story to persuade the decision-makers. Fact finders often analyse the evidence using stories. They reach conclusions based in part on the appeal of stories. Some stories are more persuasive than others.
A story may be put forward by a lawyer as part of the overall trial strategy; if one is not, rest assured that the fact finders will come up with their own. The lawyer who fails to acquire this knowhow is simply not doing the best for their client.
Psychologists think that people use stories in many ways and they give us an insight into the psychology of decision-making. In turn, this should lead to a better understanding of the construction of a case theory and its associated themes.
Stories can help make sense of the evidence presented in court. Like it or not, our evidence is assessed against fact finders' 'knowledge' of how the world works. This 'story-framing' allows fact finders to place the evidence at trial into an existing story and test it for 'fit'.
For example, when jurors listen to forensic evidence at trial, they may compare the witness's evidence on scientific methods with what they have 'learnt' while watching episodes of CSI on television. The better the fit, the more likely they are to find the evidence credible. Gaps in the evidence could be very dangerous - fact finders will fill the gaps with their own stock of 'knowledge'.
Knowledge about stories can help us make decisions about witnesses' testimonies and the thrust of our speeches. When thinking about trial tactics, the advocate could consider putting forward a case based on an understanding of it that is outside the mainstream perspective. Will it be necessary to overtly challenge a decision-maker's world view?Anyone involved in decision-making is likely to bring their prejudices into the courtroom, as well as their emotions. The advocate needs to be aware of this and to decide whether to ignore it, factor it in to their case in a subtle fashion or confront it head-on.
Ultimately, stories can help fact finders to reach a decision in the case - through the identification and use of a persuasive case theory at trial and the story that fits with that. This extends even down to the language used by witnesses and in lawyers' speeches.
Socio-linguists have studied the use and misuse of 'powerful' and 'powerless' language, the use of metaphor in legal argument and the strategic choices made in formulating a trial vocabulary. So the story one tells at trial, and even the individual words one uses, are important strategic choices. A deeper understanding of persuasion would help lawyers to be more effective. Stories are the key to that understanding.
Lawyers should ask their firm or chambers to provide in-house instruction so that their team can learn how to use legal storytelling to their advantage.
And, of course, give your clients more time in consultations so that you can understand and find their stories for trial. In an ideal world your evidence fits together as a complete story and that story matches the fact finders' beliefs about how the world works, and you win.