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Monday, December 31, 2012

Storytelling and Trial Advocacy

I've been working on a book about persuasion, belief and storytelling and this post is an excerpt from one small portion of that text.  Comments would be most welcome.  Enjoy!

"I have been thinking for some time now about how storytelling fits into teaching trial advocacy.  I realize that it is a topic that gets thrown out there from time to time, but the treatments of the topic that I have found have always left me wanting something more.  Many of us even learned to never tell "war stories" when teaching advocacy because it wastes time and is not helpful to the students. I will give you the former, but I have grave doubts about the latter.

The original source of advocacy teaching in the 20th century, the National Institute of Trial Advocacy, teaches their instructors to never teach through war stories when conducting training.  It is a cardinal sin, but one that is difficult to avoid.  In fact, many of the best NITA teachers that I have worked with teach through stories, during training, before training, and after training - in direct contradiction to the NITA method.  Now these instructors are not in rebellion against NITA, they are just doing what humans do, teaching through stories.

while I understand and agree with the NITA approach about war stories and have tried to emulate it(most of the time), I have come to believe that is has somehow caused us to equate storytelling as something that does not have value in the advocacy teaching world - nothing could be further from the truth.

I believe this is unfortunate, because true storytelling is the core of our shared human experience.  If that is true, then bringing the story into the courtroom, appropriately of course, should make a tremendous persuasive difference.

Stop for a moment and think about your own life - when something mattered, truly mattered, how did you learn it?  Usually it was either through your own hard experience, or it was taught to you through a story.  Sometimes you knew the story, but had to experience it to believe it, sometimes not.  You can bet though that when someone else needed to learn about something you had experienced you shared your knowledge - with a story.

Stories give us the benefit of the learning, without the misery of the experience.  Recent research seems to indicate that we can experience, through stories, some of the same equivalent physical effects we would experience if we were actually living the story instead of hearing it.  Stories become real for us in a way that makes us unique in the universe - it could even be said to be the thing that makes us human, the telling and sharing of stories.

Every major philosophical, spiritual, or temporal leader has taught us through the use of stories. If it was good enough for Jesus, Mohammed, and Buddha, don't you think it might be good enough for you too?

The tales of children, told by adults, lay the foundations for the adults those children become.  The stories of our families define us, the stories of our generation challenge us, and the stories of humanity humble us.  We are, all of us, storytellers.  Some of us just do not know it consciously, but all of us do it, everyday.

Think about the stories of your childhood, and how you live your life today - see the connection?  Sit down and talk with someone for some time about the stories they were told as children, you will learn a great deal about them through those simple stories.  If this is true, then maybe there are some things that we as advocates could take from storytelling and apply to the trial experience.

Anne Lamott, a wonderful writer, shared some great ideas about writing in her book "Bird by Bird."  If you are interested in learning more about telling stories I recommend her work to you, it is outstanding.  In this text she is making an argument about what it means to be a writer, but she also talks about the formulaic approach to telling stories when appropriate.  

One idea she discusses is the ABDCE approach to telling a short story. In a nutshell the formula is Action + Background  + Development + Climax = Ending. She relates how a dramatic story holds our interest by using the formula of set up, build up, and pay off.  I think you can see relatively quickly how we might apply this formula to the outlining of direct examinations, the development of opening statements, and the crafting of closing arguments.

If that were all to consider when it comes to storytelling I personally could take it or leave it, but really there is so much more when you get past the formulas.  I find the potential for an emotional connection fascinating. It is a uniquely human ability to physically experience, through the mental exercise of storytelling, the impact of a story.  There are emotional learning points to be discovered in storytelling, and emotional impact is the mother lode of persuasive advocacy - judges hate it, lawyers love, and fear, it - juries live for it.  

So how do you know when a story is going to have that emotional impact? Well it is a lot like obscenity, you know it when you see it, but here are some things I look for:

Connection - I know this is present when I emotionally feel something internally because of the story that I am reading or watching, particularly if it causes me to feel something that I equate to a core value. Those core values are not unique to each of us, but rather they connect us to the world through the shared human experience. You can use stories to connect juries to the client emotionally.

Duality - Darkness/Light, Good Evil. Just as a candle cannot be bright unless it is placed in darkness, light is best seen through its relationship with the darkness. This story is particularly compelling when the light and dark reside together within a single person, which happens in almost every single advocacy situation.  Explaining how good people do bad things, or make mistakes, is a core component of successful trial advocacy, doing it well is a challenging task.

Finally there is usually the story behind the story - we often call this the theme of the case in trial advocacy.  When a greater good is implicated, implicitly and otherwise through the story it makes us care more about the outcome.

Most human beings long to belong to something greater than themselves, something more - does the story call us to that in some way, even if it is just by example?  

What is really being taught through the story - and how well?  

Now answering that question will take persuasion to an entirely different level."


Copyright 2012,  Charles H. Rose III, All Rights Reserved.

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