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Throwback Series

Please, Tell Me a Story

The Power of Story in the Courtroom

November 2021 By Christina Habas

To commemorate Colorado Lawyer’s 50th anniversary this November, we’ve been looking back at some of our most memorable articles. Today, in a nod to Joi Kush’s presidential theme of storytelling, we conclude our throwback series with a look at storytelling in the courtroom. If you’ve missed any of our previous throwback articles, you can access the entire series here.

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There is a large, white courthouse in California. The only cases heard in that courthouse are cases involving children. There are forty lawyers who work just in that courthouse. Because of the sheer volume of cases, the lawyers believe the judges are interested only in the most basic information about their cases. The lawyers in that courthouse have given up creativity in favor of processing. The judges in that courthouse have reinforced this by insisting on “efficiency.”

One morning, as the judge was reading through his docket for the day, a lawyer stood up before him to begin her first case of the day. She knew this judge frowned on opening statements, and simply wanted her to get started with evidence. On the other hand, she had just completed a training session in which she was encouraged to present her cases using the power of story. As she began, the judge did not look up. She said: “This is a case about a mother’s love. A mother’s love for alcohol, and a mother’s love for cocaine.”

The judge slowly took off his reading glasses, folded them, and carefully placed them on top of the paperwork on his Bench. He looked up at the lawyer, blinked, folded his hands, and said, “Thank you, counsel.”1 He was engaged.

What happened in the courthouse that morning was no accident. The “story” of the case piqued the interest of an otherwise aloof audience.

In every courtroom in every courthouse in the land, there is an audience. Whether that audience is a jury and a judge, or simply a judge, the audience is always interested in hearing a story; that is because facts without story are meaningless. Everyone loves a story—everyone.

All of us have memories of being told stories. Whether we heard “Once upon a time . . .” or some other variation of that concept, as adults we still remember the pleasure we took as children in hearing a good story. There are studies showing that individuals have a physiological reaction to hearing a story.2 Humans are “neurologically hard-wired” to relax when another person tells us a story.3 This relaxation makes us more receptive to hearing the story, and makes it easier for us to remember the information. Aren’t these every lawyer’s goals?

The Value of Story

Why does story matter? A nationally known storyteller and author, John Mooy, observes: “[W]e speak in story, we listen in story, and we make sense of the world in story.”4

If I were to tell you that on June 30, 1945, 883 men died when an American ship sank, you might have some natural feelings of sadness. On the other hand, if you were to hear the story of the sinking of the U.S.S. Indianapolis from Robert Shaw’s story-telling scene in Jaws,5 you doubtless would be indelibly touched by the tragedy of the event. To inspire people to action, the storyteller must be inspiring. That is why story matters.

How Story Works

Story transports the courtroom audience. Story takes the audience from the alien and formal environment of a courtroom and places them right in the middle of the action. Story removes the speaker from the action. When done effectively, the audience does not watch the storyteller; the story actually plays out in their mind’s eye. Story gives the audience a definite perspective—a point of view that will govern how they make conclusions about the case. Story makes the case understood.

How to Tell a Story

The techniques we use to communicate information to an audience (for example, use of voice, gestures, and eye contact) may directly impact the ability of the audience to understand the information. However, it is the substantive form the information takes that makes it both memorable and persuasive.

Elements of Story

There is no magic to telling a good story. Stories have beginnings, middles, and endings. The important part of that concept is this: Stories have an ending. They do not drone on and on without regard to the burden of boredom.

Stories also have characters, including heroes and villains. A good story makes the audience feel something about all of the essential characters. A good story makes the audience want to reward the heroes and punish the villains, and leads us to know precisely what we must do to accomplish those goals.

Finally, stories are organized in a way to make facts understandable. They are worded in a way that gives important detail and eliminates clutter.

Other elements of the story depend on why it is being told. Does an opening statement conform to certain procedural rules and provide signposts for the audience to watch for during the trial? Is the closing argument delivered so as to inspire the audience into action? If so, what action should be inspired? Is a witness’s story during direct or cross-examination presented in such a way as to personalize or demonize the witness? The attorney as storyteller must identify his or her goals before preparing the story.

Organization of Story

How the story is organized will greatly impact how well it is understood and how well it will be remembered. If the beginning of the story does not spark the audience’s interest, they will not pay attention to the remainder of the story. The story must begin in such a way that the audience will be immediately engaged and want to hear more. It must begin in such a way that immediately will evoke the desired emotion. The audience does not need to be told how they should feel—it should be apparent from the story.

The Beginning

Where does the storyteller start in telling the story? First impressions do matter. Why, then, do many lawyers waste those valuable first moments talking to their audience about minutiae?

It is human nature to choose sides in any conflict—and to choose sides early. It also is human nature to refuse to change a position once one is taken. Many people would rather defend a position aggressively than admit to making a mistake. All of this leads me to observe that the beginning of a story must be not only substantive and evoke emotion, it also must motivate the audience to take action. That is the entire purpose of a presentation to a jury or judge.

For example, if I were to say there was a shooting at a courthouse and that several people were hurt, the audience might feel some sympathy, but would have no information about how to take action to address their feelings. Add more detail, a note of tragedy to the story, perhaps—that the two victims were at the courthouse to be married—and the audience will be driven to want to help those victims. Add still more detail—that the shooter entered the courthouse by going past a security guard who had no training to search for weapons, because the company that was paid to provide security had failed to comply with basic standards of training—and the story provides the audience with the means to redress the wrong that was caused: holding the security company liable.

Consider the most vivid image of the case facts. Choose a point in time that best exemplifies the most significant motivating facts of the case. Is there an image in the case that describes the “wrong” while providing a way for the jury or judge to right that wrong? That should be front and center at the start of the story.

The Middle

The story in any opening statement must include all of the necessary elements to prove the case. Then, the middle of the story must weave all of the necessary factual detail of the case into the legal theory that supports the ultimate request for relief. To make the story memorable, include sufficient detail that allows the audience to actually “see” the story in their mind. That way, they can replay the important detail about the story whenever it is needed.

To hold the attention of an audience, a speaker should vary the pace, tone, volume, and subject. In the same way, a good storyteller is not constrained by always using a chronological presentation of his or her story. The story’s timeline must be driven by what the speaker considers the most important events in the story, not just by their chronological occurrence. Effective storytellers do not always tell the story in a linear fashion. Having the ultimate purpose of the story firmly in mind will dictate how the story will unfold.

The Ending

Where and when does the storyteller stop? Simply put, it is time to stop when the entire story has been told. Based on observation, however, few lawyers know when to stop. Meaningless repetition and needless clutter give birth to rambling presentations. Having confidence that the story is both persuasive and memorable gives the strength to know “when to say when.”

Colorado Supreme Court Chief Justice Mullarkey has asked that trial judges meet privately with jurors at the end of a trial so as to make the justice system more accessible to members of our community. As a trial lawyer, I sometimes viewed jurors’ comments with suspicion, and I never could be certain if they were giving me honest feedback, or simply telling me what they thought I wanted to hear. However, in these private discussions with jurors (and my review of their notes taken during trial), I know that some of their comments are heartfelt. If I were to select the one complaint that jurors commonly make about trial presentations, it would be about the amount of repetition.

Judges are no different from jurors in this regard. Many lawyers stubbornly refuse to move on to new points. Perhaps this is based on their fear that the judge or jury will not remember information unless it is “pounded into their heads.” In fact, just the opposite is true. Memorable stories come from the important detail of the case, told in an interesting manner. Attorneys must listen to what they are saying. The next time you begin a sentence with “Again,” just STOP.

Taking My Own Advice

As a frequent audience member myself, I appreciate a thoughtful and interesting presentation, and I appreciate brevity. So, I will leave you with this final thought: the next time you come into my courtroom, please, tell me a story.

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Notes

1. This story is told with apologies to William Hornbostel, faculty with the National Institute for Trial Advocacy. His version of this story is far more interesting, but space limits repeating that version here.

2. See, generally, Caine and Caine, Making Connections: Teaching and the Human Brain rev’d ed. (Palo Alto, CA: Dale Seymour Publications, 1994).

3. Id.

4. Mr. Mooy is a member of the faculty of the National Institute for Trial Advocacy, and is a frequent lecturer throughout the nation on the power of story. He consulted with the U.S. Attorney in the Oklahoma bombing trial (People v. Nichols) and is a frequent consultant with trial lawyers. The author gratefully acknowledges Mr. Mooy’s assistance in preparation of this article.

5. Shaw played the infamous Captain Quint. For a complete text of his story, see the Internet Movie Database at http://www.imdb.com, and look under “Memorable Quotes.”

It is human nature to choose sides in any conflict—and to choose sides early. It also is human nature to refuse to change a position once one is taken. Many people would rather defend a position aggressively than admit to making a mistake.