October 2013 Bar Bulletin
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October 2013 Bar Bulletin

Strategy on the Fringes of the "Story Model" Theory of Trial Presentation

By Thomas M. O'Toole


A common pitfall in any endeavor is mistaking goals for an action plan. The end result is failure. For this reason, the "tell a story" recommendation may be one of the most frustrating cliches in litigation preparation efforts. Often, attorneys develop compelling "stories," but struggle to understand where to go from there.

The problem with the "story model" is that it has been fundamentally misunderstood and misapplied to jury strategies. Almost 30 years ago, two prominent jury scholars published some experiments showing that jurors make sense of cases by constructing a narrative about the case. It is difficult to dispute their findings, which have been replicated in countless forms in jury research projects across the country in recent decades.

However, there is a subtle, but critical, distinction between jurors making sense of a case through a narrative and an attorney being a storyteller. In fact, attorneys have few, if any, opportunities to be a storyteller at trial before closing arguments and jury research has consistently shown that 70 to 90 percent of jurors make up their minds about a case long before closing arguments.

There may be story elements at trial, but there is certainly not "storytelling," which is why so many attorneys experience frustration when they go to implement their "story" recommendations.

In litigation, attorneys need practical solutions for complex problems, not abstract theories. It is important to know the story you would like your trier of fact to construct around the case facts, but knowledge of that story only identifies a goal, not the concrete steps that need to be taken to reach that goal. This article focuses on specific strategies and concrete steps for attorneys that will help achieve the desired results of the client.

Theme Development

Robert McKee, the authority on Hollywood screenwriting, coined the term "controlling idea," a concept that cleverly illuminates the role of themes. Here's what he says about it:

A true theme is not a word, but a sentence - one clear coherent sentence that expresses a story's irreducible meaning ... it implies function: the controlling idea shapes the writer's strategic choices. It's yet another creative discipline to guide your aesthetic choices toward what is appropriate or inappropriate in your story, toward what is expressive of your controlling idea and may be kept versus what is irrelevant to it and must be cut.

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