You expect another tired narrative about the key tenets of legal storytelling, but this isn’t how that kind of article usually begins. You sit in your office and wonder, where is the introductory tale of trial woe? Where is the main character trial lawyer struggling with a problem? No courtroom drama to start us off? So, this must be something different.
“Every story takes only five seconds to tell.” So says Storyworthy author Matthew Dicks who we recently cited as one of our favorite references for effective storytelling. But how can that be possible, or useful, in the context of persuading opposing counsel, jurors and judges? Haven’t we said (and haven’t you heard) all there is to know about the value of story in litigation and trial? In this column we lean heavily on Matthew Dicks’ storytelling advice, apply a few key concepts to litigation, and offer concrete and practical ideas for integrating story into your persuasion so not a day goes by without it.
First, identify the critical moment and work backwards. Dicks focuses his storytelling on identifying the key moment of the story. It happens in those precious few seconds that encapsulate the reason the story matters—the reason the story is worth telling. It reveals the moment everything changes, the visualization of a universal truth about human behavior, about what we learn as we go through life. He identifies examples like when the non-believer scientist Indiana Jones finds faith in the unknown; when Star Wars’ young, technology-focused Luke Skywalker shuns spaceship technology in favor of his intuition.
“Until you have it, you don’t have a story.” The critical moment is symbolic, meaningful, and its meaning is almost immediately clear and appreciable. In lawsuits, we too often miss or underappreciate these critical moments. In an employment case it could be as simple as a brief interaction between an employee and a manager—the moment the manager’s behavior changes forever how the employee feels about her workplace and her inability to safely act upon it. In a trade secrets case—the moment a thief realizes he has access to something valuable and knows what he must do to exploit it. In a lawsuit, the critical moment of the entire case may not be clear until you can put the entire picture in view. But, often it is clear from the very beginning. Don’t ignore your instincts about the critical moment when you first learn of a new case or interview your client early in the matter. Focus your attention on that moment but stay flexible as you learn more.
Second, identify and develop the moments that build to the critical moment. Once you have identified the critical moment (or a few candidates) look next to identify the supporting moments. These are the single-digit number of symbolic moments made from the need-to-know facts that force the action and allow maximum impact of the critical moment as the illuminating and symbolic moment for the entire story. The best “building” moments reveal symbolic events that call into question whether the story’s ultimate message and meaning will hold true. They encourage the audience to experience tension between the action that drives the story forward and the resolution at its end. For many types of cases, you can anticipate the critical moment and building moments that will most resonate.
For our employment lawsuit, these moments often occur in the employees’ prior interactions with the manager, a key moment during employee orientation, or a meeting with a co-worker or human resources manager. They encourage the audience to question: What kind of manager is he? What does he do in stressful or high-conflict situations? Is he likely to be thoughtful or impulsive?
In a trade secrets case, the building moments may occur as an inventor or entrepreneur identifies the key idea that distinguishes her business, the aha moment of developing that idea, and steps taken to protect it. They encourage the audience to wonder: Is this a cool business that I should protect? Is this idea valuable? What would a company like this do to protect a secret? Importantly, the building moments should flow from facts the audience needs to know to appreciate the critical moment.
Third, identify the “need to knows.” We do not need every fact to appreciate a good story. We don’t even need all of the important facts. Especially considering what attorneys think are important facts. Instead, you need to establish the critical “need to know” facts that are required to make your critical moment land the way you want it to land. This is an infinitely difficult exercise for litigators and trial lawyers who overvalue details and can often struggle to spot the deadwood. Does understanding the import of the critical moment require a fact? If not, it’s not a “need to know.” Does presenting a building moment require a fact? If not, you definitely do not need it.
Once you know your critical moment and as you construct your building moments, make a list of the facts the audience needs to know for each moment to make sense and to have the desired impact. Remember small tips like focusing on facts in the present tense (i.e. when asking in depositions), always identifying a physical location and physical and sensory details to put your audience “in a place,” and ask the extra questions to develop a concrete visual experience of being in the important factual situation you’ve identified.
For our employment case these facts focus on the employees’ prior work history, the manager’s pattern of conduct, the key training and orientation events. In the trade secrets case, the facts focus on how the businesses started, their record of successes and failures, the ways they have changed and evolved (or not) over time. Revise your list liberally and update it constantly. Ignore or minimize extraneous facts you once thought were critical that as it turns out are not necessary for the story. Stay flexible. Don’t get attached.
Fourth, use alternating concepts to drive the story forward. In the words of Matthew Dicks, “The ideal connective tissue in any story are the words but and therefore, along with all their glorious synonyms.” Use your building moments and story chapters to deliver forward motion through opposition and resolution. As Dicks puts it, “and” stories have no movement or momentum. Opposing concepts and language are key and they create a format for how you can develop and consider your building moments. Use negatives to help jurors imagine the “buts” and the “therefores” and to present binary (i.e. more dynamic and engaging) principles where otherwise singular (i.e. limited, boring) concepts could apply.
For our employment lawsuit, for instance:
Mrs. Walker started as an account leader at Corporation X in early 2021 but had no intention of having to find a new job before the end of that year. She was never late, she was never difficult to work with, and did not miss a single key performance goal. But that was not enough. Instead, her first month on the job would be an experience unlike any she had ever had at any of her prior jobs.
Now, look back at our second step of identifying the moments that build to your critical moment and apply this same logic of opposing concepts and ideas. What are the opposing moments that help to drive the critical moment. Identify these and build your story around them. If the critical moment reveals that Corporation X’s manager was calm, cool, and clear under pressure, what opposing moments would put that into sharpest relief. Building moments could be how the manager began his career, how he responded to a setback, how he responded to a promotion, how he dealt with a critical conflict where his judgment was questioned, and how he considered his options and emotions when he first recognized the employee Plaintiff was going to need discipline. These signposts in your narrative allow you to alternate between positive and negative, to support with “but” and “therefore” facts, and to drive toward the ultimate moment.
Overall, find story everyday. One of our favorite takeaways from learning Matthew Dicks’ approach to storytelling is something we apply every day, in every case. Look everywhere and always for the elements you experience that fuel a story. Look for the critical moments where something shifts and will never be the same again. Work to see the moments that put that discovery into reality and identify only those key facts that are required to appreciate it. “Homework for life.” If you do this in your work, you’ll spot story more easily, sharpen your skills for developing more comprehensive stories and enjoy your work with a new and different meaning along the way.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
