by Laurie R. Kuslansky, Ph.D
Expert Jury Consultant
Believe it or not, soap opera writers are better at storytelling than some litigators. Why? Not because of their subject matter or their wisdom, but because they know how to activate more of the brain than some lawyers. They put events into a story context, and they know how to use language to activate the brain better. If they can do it, so can you. Why is that important?
Raymond Mar, a psychologist at York University in Canada, performed an analysis of 86 brain imaging studies, published last year in the Annual Review of Psychology, and concluded that there was substantial overlap in the brain networks used to understand stories and the networks used to navigate interactions with other individuals — in particular, interactions in which we’re trying to figure out the thoughts and feelings of others. Scientists call this capacity of the brain to construct a map of other people’s intentions “theory of mind.” Narratives offer a unique opportunity to engage this capacity, as we identify with characters’ longings and frustrations, guess at their hidden motives and track their encounters with friends and enemies, neighbors and lovers. 
But where is the “story” in a complex patent?
Where’s the emotion in tedious insurance language?
The answer is that if people are involved, there is always a story, including emotion, social interaction, sensory experiences and more – but they are usually left on the cutting-room floor in favor of dry facts and figures. This actually turns off the brain, rather than bringing it into action. Reciting facts using only factual words is like wrapping a gift of cardboard in a brown paper bag. Not very exciting or memorable, is it?
We understand why some litigators resist simplifying and looking for the “story.” For one, they know too much and can’t unlearn what they know in order to simplify. They are also concerned about oversimplifying to the point of inaccuracy. In a jury trial, they also must present to a diverse audience with conflicting needs: the judge and the record on one side and the jury on the other. There are also experts to satisfy who earn their keep by the details they can dispute and the hairs they can split – the more, the better. The less understandable their charts, the more diligence they may think they show, bolstering their expertise and justifying their high rate of pay. Finally, some trial lawyers may think that telling just the facts -- rather than telling the story -- is more powerful and credible.
Unfortunately, science disagrees.
Brain scans have revealed that just the facts, absent sensory language, only stimulate the language areas of the brain, and that hackneyed metaphors are processed as mere words by the frontal cortex.
Employing stories that incorporate metaphors and sensory experience activates the whole brain. It actually stimulates the same areas of the brains of the audience as the original action does (e.g., the olfactory cortex when hearing descriptive words involving smell such as lavender and cinnamon or the motor cortex when hearing about movement). Of course the facts matter, but the adjectives, the motives, the cause and effect, and the reasons jurors should feel, remember and care, matter too.
There’s always a story, but if you don’t tell yours, jurors will use their own.
Humans automatically make stories out of virtually all life events in order to make sense of them. Random events are given meaning through personal interpretation because we crave an explanation for the cause and effect of life. It gives us a sense of control, even if it’s false. If you don’t provide your version of the story, jurors will create their own narrative anyway, so it’s better for you to exercise more control over the story than to leave it to amateurs and detractors.
How can you make the case into a story? It is easier than you may think. For one, make it priority one. We often find that lawyers overlook this task, or worse, resist it. Instead of merely tracking the facts, ask questions in terms of human behavior, not just the law or the chronology, such as:
“What really happened here on both sides?”
“Why did they do that?”
“What were they thinking and feeling?”
“What did they know or not?”
“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?”
But this is just the beginning of the process, not the end. After you’ve figured out “what really happened,” you need to breathe life into it. You need to put jurors in the shoes of your client – from the beginning -- so they can experience what your client did, understand the client’s dilemmas, feel the client’s frustrations, and align with the client’s decisions – in human terms, not legal ones. And you need to tell it using the art and the science of effective description and compelling storytelling.
- The simpler the story, the better.
- The simpler the language, the better.
- Use metaphors involving sensory descriptions (e.g., prickly personality, velvet voice, leathery hands, etc.).
- Reduce the facts to a story connecting to jurors’ real-life experiences, feelings and thoughts. Make it relate to what jurors may have experienced.
- Assume jurors have no context for the facts unless you provide one.
- Remember how long it took you to wrap your head around the case, whereas jurors have only a few days, so don’t start in the middle or the end.
- Use word pictures, including visual and sensory details of important moments, and have witnesses do the same, for example:
Q: Why did that email in particular stand out to you?
A: “Because the subject was in all caps.”
A: “Because when that email came in, it was very early in the morning. I was groggy and drinking my second cup of black coffee, while I was pressing the down arrow key on my computer to quickly see my new emails. That email stood out when I was scrolling through my inbox because the subject was the only one all in capital letters, so it caught my attention.”
- After jury selection, when you know more about jurors’ individual backgrounds, refine your story to connect better with them.
Don’t only use your brain, but jurors’ brains too. Activate their senses, their feelings, their thoughts, and their social experience. Take the extra step, while sipping on warm green tea or frothy cappuccino, to choose more descriptive words. Wear a comfy, plush robe or close your eyes in the breeze to figure out the story, but do it.
 Your Brain on Fiction by Annie Murphy Paul, Published: March 17, 2012 in the NY Times. http://www.nytimes.com/2012/03/18/opinion/sunday/the-neuroscience-of-your-brain-on-fiction.html?pagewanted=all&_r=0
Articles related to storytelling for litigators and explaining your case simply on A2L Consulting's site:
- Creating a simple story is hard. Explain to the client how difficult that was is even more difficult.
- 10 things every mock jury has said in 400+ mock trials
- Free e-book download: Storytelling for Litigators
- Free e-book download: A Guide to Getting the Most Out of Your Jury and Trial Consultants for Experienced Litigators
- 5 keys to telling a compelling story at trial
- 17 steps for turning your client into a hero using Joseph Campbell's hero's journey [includes superhero infographic]