Great trial lawyers are paid to tell stories for a living. Typically, one side’s recitation of a story is more persuasive than the other – even when both sides are drawing on the same set of facts. But why? Is it the charisma of the trial lawyer? Is it the way the story is told by both sides? Is it the deployment of superior litigation graphics by one side?
Well, it’s all these things – and more.
Our litigation consulting firm is often engaged to help top trial lawyers tell their stories in the most persuasive way possible. We do this by applying the latest findings of persuasion science and sharing the wisdom that we inherit by routinely observing the world’s very best trial lawyers.
This article is the first in a series of four articles. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement.
A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case.
Tip #1. There must be a story.
You should present a story, and it should follow the basic guidelines of storytelling. That is, there should be a beginning, middle, and end, and there should be storylines and human characters that your factfinders care about.
Research tells us that human beings automatically make stories out of virtually all life events to gain a sense of control, even if it’s a false sense. It’s the difference between collecting bare facts and interpreting them in a coherent manner. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts what they “mean” rather than merely accepting information as is. Most of what people discuss in their social lives are stories and gossip – not random facts.
Since we know that your jury will be using a story to sort out your litigation facts in order to reach its results, whose story do you want the jurors using -- one they’ve made up, one provided by opposing counsel, or yours?
If we now think about how one might tell a story in an opening statement, below is a model for telling such a persuasive story. This example comes from a trial that ultimately derived from the financial crisis of the last half of the decade of the 2000s, where the issue was whether a bank could be held liable to its shareholders for bad real estate investments that the bank made.
Introduction: I like to start with the statement of some fundamental truths and an introduction of the characters like, “Banks survive on greed - it's how they make money. When they make good loans, they make money. When they make bad loans, they lose money. These bankers are essentially being accused of making bad loans, which to be true would have to mean, they were not trying to make money. When is the last time you heard of bankers not trying to make money? It makes no sense.”
Rising Action: Here the key is to keep a logical flow and keep the tenor rising until the conflict is identified. For example, “After years of lackluster home sales, finally it looked like Miami was positioned to take off and it was these bankers' jobs to make sure their bank made money -- and that meant, making loans. And that's just what they did. Month after month, loan applications were up, and month after month, the bank was making more and more money. These bankers were at the top of their game. They received awards for their actions. But a storm was brewing. A real estate collapse had begun, and these bankers had to face it head on, sometimes at great personal sacrifice.”
Climax: Here, we see where our heroes overcome or are instead defeated by the conflict. For example, “Our clients did their best to weather the storm, but the reality of the real estate environment was too great to overcome. Loans were not repaid, foreclosures occurred, our clients either lost their jobs or retired, and the bank ultimately failed. It was a brave battle but just not one you can fight at the age of 70 after a 40-year career in banking. Even if they wanted to, the fight was not winnable.”
Falling Action: Here is where the drama begins to wind down. For example, “So, they returned to their families. They lived modestly. They played with their grandkids. On a part-time basis, each helped to wind down bank operations. In the end, they saw much of their life's work blotted out by forces that were completely beyond their control. After all, they are just a couple of retirees who did their job well – they made loans and the bank made money until the unthinkable happened.”
And the Resolution: This is the end of the story, where it becomes clear who the winners and losers were. For example, “Ultimately insurance protected all the bank customers, so no money was lost. The stockholders lost money in their investment, but not all investments work out, right? Not all the loans these bankers made worked out, and there's no redo for them. So, would it make sense to reward stockholders for their investment that didn’t work out by giving them an award of money? If bank greed makes us squirm, the greed of those trying to recoup a lost investment in a bank should make you sick.”
That is a story that most jurors will not quickly forget.
Be sure to sign up to be notified as the next several parts of this article are published. There are nine more tips coming in the next several articles.
Other A2L Consulting free resources about litigation storytelling, opening statements, and trial presentation include:
- Conflict check: Be the first to retain A2L
- Three Top Trial Lawyers Tell Us Why Storytelling Is So Important
- Your Trial Presentation Must Answer: Why Are You Telling Me That?
- Free Download: 219-Page Opening Statements Toolkit E-Book
- Are You Smarter Than a Soap Opera Writer?
- 10 videos to help litigators get better at telling stories at trial
- Free Webinar: Storytelling for Litigators
- 11 Things Your Colleagues Pay Litigation Consultants to Do
- 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant
- Free Download: Storytelling for Litigators
- 5 Essential Elements of Storytelling and Persuasion
- Storytelling Proven to be Scientifically More Persuasive
- Storytelling at Trial Works - But Whom Should the Story Be About?