Storytelling throughout trial: increasing your persuasive powers.

When my children were small, they delighted in gathering close to hear me tell a story. With two on my lap and one at my feet, I moved from the sublime to the ridiculous creating imaginary characters to perform amazing fears. With eyes wide, the rapt tots absorbed information like sponges. At the end they clamored with questions of why, what, who, and where.

Children love stories. Adults love stories. People understand and remember through listening to stories. Jurors decide cases on the basis of stories told, heard, and understood.

Gerry Spence explained the role of storytelling in an article in the ABA Journal, April 1986:

Of course it is all storytelling - nothing more. It is the experience of the tribe around the fire, the primordial genes excited, listening, the shivers racing up your back to the place where the scalp is made, and then the breathless climax, and the sadness and the tears with the dying of the embers, and the silence.... The problem is that we, as lawyers, have forgotten how to speak to ordinary folks ... lawyers long ago abandoned ordinary English. Worse, their minds have been smashed and serialized, and their brain cells restacked so that they no longer can explode in every direction - with joy, love, and rage. They cannot see in the many colors of feeling. The passion is gone, replaced with the deadly droning of the intellect. And the sounds we make are all alike, like machines mumbling and grinding away, because what was once free - the stuff of storytelling - has become rigid.

Social scientists have studied the impact of the delivery on how the message is received. The three primary channels of delivery are verbal (words); vocal (how the message is delivered); and nonverbal (facial expressions, eye movements, or body positions).

The findings are devastating to today's language-enamored lawyer. Experts say that the actual words count for only about 10 percent of the impact. The vocal message (inflection, resonance) accounts for about 40 percent of the impact. By far the most important aspect of the message is nonverbal, which delivers remainder of the impact. All three components play major roles in the storytelling process.

Information Overload 

In the modern world we are inundated with information. But information is not knowledge. Theodore Roszak, in The Cult of Information, writes that knowledge is created by individual minds, draming on individual experience, separating the significant from the irrelevant, making value judgment.

Facts, by themselves, have little meaning. It is only when facts are in some way put together or processed that the meaning begins to become clear.

When we receive random, unstructured data, we become anxious. Information anxiety is produced by the ever-widening gap between what we understand and what we think we understand.

Richard Wurman, in Information Anxiety, tells us that "information anxiety is the black hole between data and knowledge. It happens when information doesn't tell what we want or need to know."

Several general situations are likely to induce information anxiety. It sets in when a person does not understand information, feels overwhelmed by the amount of it, does not know where to find it, is not certain how much of it exists, or does not have the key to access it. In a courtroom setting, trial lawyers should lower the anxiety level, create understanding (which is the bridge between data and knowledge), and enhance understanding by creating a setting that allows listeners to become comfortable md receptive to what is being presented. Remember, today people have microsecond attention spans. Trial lawyers can overcome listeners' reluctance to accept and understand new information through storytelling.

Human beings are collections of stories accumulated over a lifetime. When given an opportunity, we select an appropriate story from our stored memories and tell it. We measure appropriateness primarily by familiarity, emotion, the potential for shared viewpoint, and the desire for approval. Finding a relevant past experience that will help make sense out of a new experience is intelligence in action.

In his book, Tell Me a Story, Roger Schank tells us that experience lets us know how to act and how others will act in given stereotypical situations. That knowledge is called a script. Taken as a strong hypothesis about the nature of human thought, a script obviates the need to think; no matter what the situation, people may use no more thought than what is required to apply a script. Schank's hypothesis holds that everything is a script and that very little thought is spontaneous.

Scripts are also a memory structure in that they let us act more or less by rote, without our being fully aware that we are using them. They are storehouses of knowledge we have about certain situations. They are collections of old experiences against which we measure new experiences of the same type.

When something new happens, there is a place to store the new information so we will be wiser next time. Scripts change over time, therefore, and embody what we have learned. Obviously, some novel experiences can be understood even if no script seems to apply, because a new experience can be seen in terms of an application of a number of previous experiences.

Trial lawyers must fathom the stories that are stored in each juror's mind so, as effective communicators, we can activate the ones that match our client's story favorably. If the relevant stories are not activated, unfavorable scripts may surface and be applied by jurors to the situation at hand.

Storytelling Goals

A good teacher - and a good trial lawyer - not only correctly explains but arranges explanations in memorable formats. When we tell stories to other people, we have five basic goals:

1. To illustrate a point;

2. To make the listener feel one way or another;

3. To make other people experience certain sensations, feelings, or attitudes vicatiously;

4. To transfer some piece of information in our head into the head of the listener; and

5. To summarize significant events.

In a trial setting, stories are told for all these reasons. The attorney's primary concern should be how to relate new stories to the juror's stories. Different people understand the same story differently because the stories they already know that relate to it are different. Once jurors find their own stories, they stop processing.

This is a frightening concept for someone who wishes to communicate effectively. If listeners stop listening once a relevant story is located, persuasion becomes more difficult. This means that attorneys must condense information at trial, deliver it quickly with impact, and hope the main theme is etched into the mind of each juror in a manner favorable to the client. It also means that a motivational factor must be included in each story that will overcome the natural tendency to stop processing once the listener has found his or her own story. For example, anger is always an excellent motivational factor. If the relevant story we activate is, "That happened to me and I didn't like it," we can expect a juror to be motivated to correct the injustice.

Applying certain communication concepts can make us better storytellers. People process information through visual, auditory, and kinesthetic channels. A person using a visual channel creates a "mind's eye view" and might be inclined to say, "I see what you mean." An auditory processor has to hear the message to understand it. That person might tend to say, "I hear what you are saying." A kinesthetic person processes information by living the experience. This person might say, "I want to feel right about this."

People use all three channels to process information, but most people tend to favor one channel. To communicate effectively, we must learn which channel a juror favors. Sometimes we can find this out during voir dire. This rule of affirmatives becomes useful in framing the stories we tell jurors.

Social scientists also tell us information is best understood when presented to jurors in groups of threes. The rule of threes has been used for centuries: "faith, hope, and charity"; "life, liberty, and the pursuit of happiness"; "as simple as one, two, three."

Another communication concept is the well-known theory of primacy: That which is heard first will be remembered best. The "four-minute drill" is another concept that should be used at trial. Social scientists say that most people in a social setting develop a first impression within four minutes of the initial encounter. Translated into juror communication techniques, this means we must tell the main story to jurors as early as possible. Once implanted, an effective and persuasive story will remain the focus of the jurors' minds throughout the trial.

Telling a story in the present tense while using active verbs makes a strong impression on the listener. The story is happening now, and the listener is there. "Imagine Joan stopped at the fight when she was struck violently from the rear" is less effective than "Imagine Joan sitting in her car at the stoplight, thinking of the joy she experiences when the children come racing in from school, when suddenly her body catapults forward as the defendant strikes her motionless vehicle from behind."

Phases of Trial

Storytelling should play a part in every aspect of every case. It is easy to recognize the need to tell an effective and persuasive story during opening statement and closing argument. A lawyer who can capture his or her audience in these two parts of trial by telling a story with impact is to be admired, but that lawyer has not fully mastered the art of communication. Storytelling must be used in every single phase of the trial, from voir dire through final argument.

Voir dire. This phase of the trial provides a unique opportunity to use the storytelling concept. Most experts agree on the three primary goals in voir dire: (1) information gathering, (2) indoctrination, and (3) creation of rapport. To effectively gather information, the lawyer must create an atmosphere in which jurors are comfortable telling stories about themselves. This is where attorneys can learn whether an individual juror tends to channel information through either visual, auditory, or kinesthetic means.

Conversations are self-adjusting systems. In voir dire, as we speak with a juror, we must constantly adjust our language based on the cues we receive from that person. Does he or she look baffled or excited, bored or angry? We can simplify, repeat, and move among various levels of complexity based on continuous feedback: a slight nod; a gaze up, down, or to the side; a blink; a shrug; a turn of the head; or loss of eye contact. The symphony of signals occurs during even the briefest of conversations.

To indoctrinate - that is, to educate - we must listen to jurors and reframe what they tell us in terms of the story we want to tell on behalf of our client. For instance, in a medical negligence case, if a juror discloses she is a nurse who becomes distressed when working in the emergency room, we can sympathize with her situation and respond by having her agree there are certain protocols medical care providers must follow, regardless of the urgency of the situation.

By sharing our own stories, often in a self-deprecating manner, we allow jurors to understand us, sympathize with us, and relate to us. For example, we can tell jurors how nervous we are, even though we have tried many cases. By doing this, we can build a strong rapport with the jurors.

Opening statement. This is the first opportunity to tell the jury our client's complete story. We introduce the theme (or reintroduce it if an opportunity arose during voir dire to introduce it) and set the stage. The story must be told so that jurors can easily index it to their own favorable scripts while we appeal to visual, auditory, and kinesthetic channels of understanding.

The story must be told early to satisfy the concepts of primacy and the four-minute drill. We should present major points in story form in threes and tell the story in the present tense as if the jurors were there, living the events with the victim. Impact words and phrases (for example, crash," "a bone snapped," "the standard was violated," or "a promise was broken"), devoid of legalese, should be used to convey the messages.

At this point in the trial, themes for liability, damages, and motivation to act should be established. If we tell the client's story in a persuasive fashion with a beginning, middle, and end, jurors will have difficulty focusing on anything else during the trial.

Direct examination. This phase of trial epitomizes storytelling. The client's story is told with the attorney acting as the moderator. As good storytellers, we should anticipate jurors' questions and ask the witness those questions during the storytelling process. The story must be compact, simple, and direct.

Establishing an expert's qualifications in direct examination is a good test of effective storytelling. Many lawyers tend to present qualifications in a droning, quick-hitting, "let's get this out of the way" manner. But the story that must be conveyed to the jury is, "Ladies and gentlemen, we have a very special person here in the form of this expert."

Condensed stories relating to that expert's views, education, and experience will be interesting to jurors. What prompted the expert to spend three years in Saudi Arabia researching petrochemical issues is more persuasive than the fact that he or she traveled to the Middle East. An expert is someone who has many stories to tell in one particular field and who has those stories indexed well enough to find the right one at the right time to help prove the case. The expert becomes a storyteller in the process of testifying.

Cross-examination. This is also an essential time for storytelling. Ideally, an opposing witness will be discredited, but this is not enough if jurors have no clue as to what story has been told. The cross-examination must play a role in the storytelling.

The rule of affirmatives plays a role in cross-examination. The unconscious side of a juror's mind will search for relevant stories, but it cannot understand a negative. In cross-examining, "yes" responses from a witness will elicit the most favorable reaction from jurors. In his book, How We Know What Isn't So, Thomas Gilovich tells us:

When trying to assess whether a belief is valid, people tend to seek out information that would potentially confirm the belief, over information that might disconfirm it. In other words, people ask questions or seek information for which the equivalent of a "yes" response would lend credence to their own hypothesis.

In Tell Me a Story, Roger Schank points out that memory is composed of memory organization packages (MOPs). A MOP covers a context-dependent aspect of memory, like taking a trip or going on a date. A MOP is a set of scenes, each of which covers visually defined boundaries that might occur in a variety of combinations, such as going to a hospital emergency room and confronting the desk attendant over insurance coverage matters.

Some men have experienced embarrassment at having left a fly unzipped in public, and such an experience may constitute a MOP. Everyone conjures up an immediate visual and auditory MOP when a dentist's drill is mentioned. In the storytelling process before a jury, we need to look for MOPs that, when properly scanned by the listener, will give rise to responses consistent with our persuasive efforts.

In cross-examining witnesses during trial, we must try to elicit affirmative responses to descriptions that will produce MOPs in the jurors' minds consistent with the client's story. For example, we can describe a badly fractured leg as having snapped at a reverse angle. This description may allow jurors to retrieve the MOP that repeated television coverage of the breaking of football player Joe Theisman's leg created in many fans' minds.

Final argument. The end of trial is also storytelling time. We should repeat the four-minute drill, retail the case story, and emphasize the moral or motivation. We should use visual, auditory, and kinesthetic channels. We should employ the present tense, themes, and the rule of threes. We should complete the story. It is a good story.

Unlike nursery rhymes, fairy tales, novels, and even works of nonfiction, this compelling story does not leave the audience merely contemplating and reflecting. This story must incite the listeners to act. They must find for the plaintiff.

Storytelling is a natural - almost innate - capability everyone possesses. Learning to use this talent effectively in all aspects of trial will increase our power to persuade jurors to decide in favor of our clients.