by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

As I pointed out in my previous blog post, when a lawyer uses storytelling effectively at trial, he or she is literally eliciting a reaction from the brain areas and the neurochemicals that are the basis of any human being’s foundation for biological survival.

Storytelling, in fact, serves the biological function of encouraging pro-social behavior. Effective stories reinforce the concepts that if we are honest and play by the right rules, we reap the rewards of the protagonist, and that if we break the rules, we earn the punishment accorded the bad guy. Stories are evolutionary innovations: They help humans remember socially important things and use that information in their lives.

To impact an audience such as a jury, a story must do three things: (1) emotionally transport the audience by moving them and having them get “lost” in it; (2) include characters facing problems and trying to overcome them, but not engaging in mere meaningless problem solving; and (3) communicate some message or moral, meaning some set of values or ideas. Otherwise, the story will seem “empty” and not important enough to pay attention to.

There are several guidelines to help you turn your evidence into a story worth telling. The essential elements you need to provide are:

1. Theme(s) of your case
2. Compelling characters (good/bad)
3. Motive
4. Conflict/Resolution
5. Messages/Consequences

In order to figure out these elements in a lawsuit setting, the first and critical question to ask and answer is: “What really happened here?”

The most common mistake is that litigators don’t bother to ask the question, or they answer it with how it (whatever “it” is) happened. Rattling off a series of events – but not the bottom line of what happened - is disastrous to connecting with jurors and telling a compelling story about your client.  As a litigator, you must ask yourself “Why must you tell THIS story?” and “What’s the belief burning within you that your story feeds off?”

Other questions that will lead to the real story are:

“Why did they do that?”

“What were they thinking and feeling?”

“What did they know or not know?”

“What were their options and choices?”

“What were they each trying to accomplish?”

“Why did they succeed or fail?”

“How did that affect everyone involved?”

“Who tried to correct it? Did it work? Why or why not?”

“How did the story end? Who won or lost?”

“What caused the problem to become a lawsuit?”

“What would make it right?”

“Why is that fair?”

“Why should anyone care about what happened?”

These are the questions that the first-chair litigator and the entire trial team should brainstorm in developing the most persuasive way to present their case.  When I consult for or with trial teams, these are the types of questions I ask and insist the first chair can answer.

Finally, these rules of thumb should be followed in developing an effective trial story:

• The simpler the story, the better.
• The simpler the language, the better.
• Use metaphors involving sensory descriptions.
• Reduce the facts to a relatable story.
• Use word pictures.

With the basics of storytelling and its importance to courtroom persuasion in mind, we must also consider how to develop a complete package of storytelling presentation. This complete package is not just the oral telling of a story, but must be accompanied by visual support. We will discuss that next.

Other A2L Consulting resources related to storytelling and persuasion at trial:

• Storytelling Proven to be Scientifically More Persuasive
• Storytelling at Trial - Will Your Story Be Used?
• Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy
• WATCH: Storytelling for Litigators Webinar
• DOWNLOAD: Storytelling for Litigators E-Book
• WATCH: Using PowerPoint Litigation Graphics for the Win
• How To Emotionally Move Your Audience
• 10 Videos to Help Litigators Become Better at Storytelling
• Are You Smarter Than a Soap Opera Writer?
• Good-Looking Graphic Design ≠ Good-Working Visual Persuasion
• Don't Be Just Another Timeline Trial Lawyer
• 20 Great Courtroom Storytelling Articles from Trial Experts
• Portray Your Client As a Hero in 17 Easy Storytelling Steps
• No Story, No Glory: Closing Arguments that Don't Close Loops
• 5 Keys to Telling a Compelling Story in the Courtroom
• Patent Litigation Graphics + Storytelling Proven Effective: The Apple v. Samsung Jury Speaks