Telling a Good Story Is the Key
By Eric Gillett
I was having lunch with a younger attorney a few months ago and he had questions about how to prepare for mediation. A couple of his questions included, “What do you want me to tell you? What do you want to hear?” As I looked across the table, I resisted the first response that popped in my head, “I want the truth.” Of course, that is correct. But really not a very helpful response and one that would likely fall flat on an inquisitive mind. So, what else? What do I want to see from an attorney in a brief and what do I want to hear when we talk, either before or during the mediation?
Tell me a story. Maya Angelou said, “There is no greater agony than bearing an untold story that is inside you.” Facts are important. Admissible facts are more important. But facts without a story may leave your case wanting. Facts without a good story may keep you from the best resolution for your client. So how do you tell that story? How do you bring your facts together in a manner that is impactful and beneficial to your client’s cause?
According to some professional fiction writers, a good story should include the following: (1) compelling characters; (2) a strong plot; (3) a vivid setting; (4) a central theme; and (5) a reason why. These elements transfer very well not only into a mediation brief but also to trial, if necessary. Let’s explore them in a little more detail.
Compelling Characters. Your client has a story. He or she did not just appear the moment before they signed a contract or fell down an unsafe stairwell. They have a backstory. One of my favorite authors, Stephen King, said that everyone has a history and most of it isn’t very interesting. But some of it is and those are the parts you want to include. Your client’s backstory can provide context for who they are in your lawsuit, why they matter. For example, you may have a client who lost his leg in an industrial accident and you are alleging it was caused by a defective machine. Those are interesting facts. But what if your client spent her childhood working in the fields to help support her migrant family? She and her family toiled year after year so that she could attend college. And just six months before she earned her degree in physical therapy, while she was working part-time at a local factory to help pay for college, the accident happened. That backstory adds depth and meaning to her current struggle. It allows you to suggest at mediation and, if necessary, argue to a jury that this young woman should not be denied the American Dream at the hands of a dangerous employer.
Strong Plot. Part and parcel of a compelling character is a good plot. How did your client find themselves in their current situation? What can you say about how the other side contributed to the troubles suffered by your client? What is your opponent’s backstory? Who are the compelling characters on the other side of the “V?”
Many years ago, I represented a road building company. An employee of the company was a young man whose job was to test gravel for its moisture content. This job was in the field, far away from home but next to the construction site. And watching rocks dry is not very interesting work. So, on his downtime, this young man decided to take a company four-wheeler on a short spin around the gravel quarry. While doing so, he accidentally ran into a powerline that was too close to the top of a gravel pile. Tragically, the young man was electrocuted and died.
The manager of the project, the so-called, “top kick,” was indignant. In his view, the young man had no business climbing on a company vehicle to joy-ride around the construction site. No one had a reason to climb on top of a gravel pile, and the fact that this young man had lost his life proved his point. During his videotaped deposition, the plaintiff’s lawyer effectively brought out this view with all his indignation on display.
We settled that case, and in no small part because this project manager showed no sympathy, no remorse, no kindness despite the fact that a young man had died on his project because a gravel pile was built too close to a power line. This was a compelling character. His indignation was a compelling characteristic. And its inclusion in the story enhanced the value of the case.
Vivid Setting. Most successful authors, when describing an object, will do more than identify the object; they will tell you how the object interacted with the world around it. For example, rather than simply saying “the sun set over the horizon,” describe the colors, the atmospheric changes, the wind shift and the temperature change, the feelings evoked by the fading light. That is a sunset.
This works just as well in the context of mediation, like it will in an opening statement or closing argument. For example, your “client’s dreams of sending her son to college faded in front of her eyes, her tears were his tears as she imagined telling him that she had been fired. And for what? For telling her manager, who she thought was her friend, a confidant, that the process for securing the door plug on the jet was faulty and might cause the plug to fail, to fly away in flight.”
Transport your audience, whether your audience is a mediator, a jury, or a claims adjuster. Take their mind’s eye to the place you want them to see. Make it vivid.
Central Theme. Every story has a theme. When I was learning the craft of trial work, one of the first lessons taught was the importance of a theme. What is this case about? What is the central message you are trying to communicate? I learned I should be able to set forth my theme in about five sentences or less. A theme runs through all the evidence you present. There may be tangents or short rabbit holes which need to be exposed but you always come back to the theme. It binds your story to the final component, the reason why.
Why? I’ve adopted the belief that its all about the “why.” Everything is about the why. And in the context of advocating for your client, your mediation brief should let the reader know why you should win. What should motivate your mediator to support your position? Why should a doubtful claims professional feel motivated to increase their settlement authority well beyond what they arrived with at mediation?
The why is unlikely because you are a skilled and successful trial lawyer. If you need to say that, it’s probably more in your head than anywhere else. No, for a plaintiff’s lawyer, the why is better directed at how your client’s life or business has been altered in a way which is far outside the norm. If you’re a defense lawyer, the why is likely the injustice being visited on a stand-up human or good corporate citizen. There is a good reason why you should prevail. Find it. Build your case around it.
I shared these thoughts with my lunch companion. He not only seemed intrigued but also excited to give this new process a try. Knowing he planned to start writing as soon as he came back to his office, I remembered to offer one last piece of advice. “Do your best to cover all the subject areas that we discussed. But above all, cut out all unnecessary words. Cut your story down to the bone. It will hurt. Revising a story to its bare essentials is like cutting off your own limb, but it must be done. Less is more.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett or at https://www.linkedin.com/in/gillett-mediation. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at eric@gillettmediation.com. Mediations in person are encouraged.
