“[T]ell a great story if you want to live.” A newly minted screenwriter, on the verge of pitching his spy thriller to studio executives, was diagnosed with a serious medical condition. He shared this advice from his doctor friend: “The most important thing I could do to stay alive was to make sure my doctors remembered me…and the only way to do that was to make my story a lot more compelling than their other cases.”[1] We can recast this advice as—tell a great story if you want to win. The battle of stories at trial concludes with the more compelling narrative becoming the truth in the verdict.[2]
Last year in Pro Te, we interviewed a panel of our experienced trial attorneys. Two themes that emerged from that discussion were the necessity of pretrial workup that focuses on how the evidence will matter at trial and forming the jury’s perception of this evidence by telling the best story.[3]
Humans have made meaning with our stories throughout history. Long before we wrote our stories, cultures around the world memorialized both sweeping epics and the mundane events of daily rituals in painted and carved pictures.[4] Theatre was a primary storytelling venue that drew large audiences from all strata of society in Shakespeare’s day.[5] The nineteenth century marked a highwater point for the influence of the novel.[6] Multiple golden ages of television have been proclaimed and debated.[7] Watching stories on our electronic devices has expanded exponentially with Nielsen reporting that for the first time, in July 2022, streaming viewership exceeded both broadcast viewing and cable viewing.[8]
From a legal perspective, the theory or theme of the case is the story that needs telling.[9] We may know a good story when we hear it, but are there practical resources that lawyers can use to understand what envelopes an audience into a story? Screenwriters, attune to efficiency and profit, have created a sub-industry dedicated to analyzing how stories work. As lawyers, we can learn from these modern storytellers, screenwriters, as well as novelists and journalists. The same eighty-five percent of U.S. households who subscribe to streaming services[10] are also our judges, juries, mediators, clients and opposing counsel.
STORY STRUCTURE
I. To Control Causation, Control Chronology
Causation is a crucial element in product liability litigation. Even when a plaintiff seeks to hold a company strictly liable and is not required to prove intent to harm, they must connect the product at issue, and often even more specifically its design and warnings defects, with her injury.
Narratives create order out of disorder. In his lectures on the novel, E.M. Forster explored how the structure of a story’s plot provides the route beyond the evidence, “truer than history,” by “suggest[ing] a more comprehensible and thus a more manageable human race” by giving the “illusion of perspicacity [shrewdness] and power.”[11] Forster differentiated a “story” from a “plot,” with the crucial distinction that a plot establishes why events happen, “the emphasis falling on causality.”[12]
Attending to the plot or structure of a story allows us to plant the seeds of causation in the mind of the judge or jury. When given a series of events in a sequence, the inclination is to form connections between these events. Stories exploit a well-known logical fallacy blurring correlation with causation:
The idea that because something occurs after something else, the former caused the latter is not only a common logical fallacy, it is of course the wellspring of narrative too. Narrative is cause and effect, linked into a chain; ‘Post hoc ergo propter hoc’ [after this, therefore because of this] is storytelling.[13]
In our work defending product liability and pharmaceutical cases, we see this pervasive plaintiff tactic that follows a predictable pattern. The plaintiff uses the defendant’s drug, medical device, or product. Subsequently, the plaintiff claims she experiences an injury. There is a company document discussing some aspect of the warnings or design of the device. This information is sequenced in a story that suggests causation regardless of whether the company’s topics of discussion have any connection to the injury or establish any flaw in the product’s design or warnings.
To disrupt this narrative connecting a statement from a company employee with a particular injury, we can start by attending to chronology. Sequencing can be more subtle than direct argument. Even in motions practice, where tackling causation head-on is a path to summary judgment victory, we can control the chronology through both careful selection and favorable organization in the presentation of the facts.
II. The Beginning is Not Always the Best Place to Start
The beginning of a story may be just as important as the sequence of events for establishing the audience’s focal point. Pause to consider the beginning of a favorite fictional story. Some stories run from birth to death, but most stories are much more tightly constructed to show characters changing: “Change is the bedrock of life and consequently the bedrock of narrative.”[14] Plaintiffs will work to tell a straightforward story about change in their lives before and after the use of the product and the resulting injury.
But another way to describe this principle is that most stories tell how a problem is solved.[15] Often, the literary means to achieve this is for characters to go on journeys, physically or metaphorically.[16] For defendants, the journey of the story might begin with identifying and thoroughly explaining the reason that the product or innovation was created in the first place. In other words, explain the problem the product was designed to solve. If we can take this narrative out of our opponents’ hands, we can capture the fulcrum on which the story of the litigation turns. Rather than misdirection, this is more like what legal writing instructor Ross Guberman describes as the “panoramic shot” frequently used in movie opening sequences to “create a similar bird’s-eye-view-effect.”[17] Provide a broader vision, a more descriptive context, and a wider view of reality than the plaintiff’s inevitable story portraying a profit-seeking company heedless of its customers’ safety.
CHARACTER DEVELOPMENT
I. Find the Anecdotes Hiding Behind Adjectives
Lawyers should see those involved in a case as characters because this reminds us that it is our job to set the stage: “Nothing in the world is inherently interesting—that is, immediately interesting, and interesting in the same degree, to all human beings. And nothing can be made of interest to the [audience] that was not first of vital concern to the writer.”[18]
Making real people believable differs from creating fictional characters, but both are about finding details that are memorable, specific, and even, at times, ironic. One technique discussed in James B. Stewart’s guide to telling good stories in non-fiction involves substituting short stories for descriptions: “[W]henever you’re considering the use of an adjective, it’s worth pondering whether an anecdote exists that would make the same point more convincingly.”[19] This is a more specific version of the show-don’t-tell principle. It can be useful in pretrial fact investigation to locate details without directly asking witnesses to come up with stories on command.[20] Any writing in which we develop the facts—from briefs to expert reports to mediation statements—can invoke this principle. Start the process early of searching for anecdotes that illustrate the overarching trial narrative.
II. Focus on Making Characters Active
Character development in stories centers around building empathy. A lesson from storytellers is that audiences do not empathize with characters because they are virtuous. Instead, audiences will follow an active and resourceful protagonist on almost any journey. If a character is passive, his goodness will not redeem him from the mortal sin of being boring.[21]
This principle can work in both directions in litigation. Focusing on the passivity of an opponent is more palatable than a direct attack. If the plaintiff is claiming a particular injury, but the timeline shows that the only time the plaintiff complained about it was when lawyers got involved, this characterization works even better. But the passivity characterization could also touch on areas not directly related to the heart of the matter and be a useful tool in making a plaintiff or witness less likable.
Contrasted with passivity arcs for opponents, an active arc will be most effective when it highlights positives in the defense story. But lawyers should not neglect opportunities to emphasize growth, learning and development that can augment the portrayal of company witnesses and experts.
If our client’s story can capitalize on both an active arc for our side and a passive arc for our opponent, this juxtaposition ties into another characterization principle about how characters are most often understood through comparison. John Truby’s screenwriting manual is a complex 22-step guide to creating stories that organically develop from characterization.[22] While much of his paradigm is specific to his own craft, he includes illuminating discussion about how all characters in a story should form a web so that their interplay highlights the key features of the main protagonist.[23] He recommends interconnection as both a characterization and an organization technique.
CONCLUSION
The stories we tell are about real companies and people and their problems and conflicts. Even so, considering these principles about structure and characterization used by fiction writers offers some insights into how compelling stories convince their audiences that they are worth the journey. Our goal is for our audiences—both before and during trial—to believe in our client’s stories so that we can persuade them to follow us to the correct conclusions.
[1] Matt Bird, Secrets of Story 334 (2016) (emphasis in original).
[2] Jonathan Shapiro, Lawyers, Liars, and the Art of Storytelling: Using Stories to Advocate, Influence, and Persuade 26 (2014) (“During my training in trial advocacy at the US Department of Justice, we were told trials are stories, competitions in narrative. The winning side is the one that tells the best story. Everyone says that, but they don’t mean it. If they did, lawyers would be taught that the words ‘case’ and ‘story’ are interchangeable . . . They would learn to write like storytellers, plotting their arguments with pace in mind, developing characters, identifying their wants, understanding their conflicts, and reasoning to a credible resolution that moves, convinces, and persuades the listener.”).
[3] Caroline D. Walker, Kim Bueno, Paul V. Cassisa, Jr., Andrea La’Verne Edney, William M. Gage, Anita Modak-Truran, & Orlando R. Richmond, Sr., Trial Lawyer Roundtable, Pro Te: Solutio, Vol. 15, No. 1, Mar. 7, 2022.
[4] See, e.g., A History of Storytelling Through Pictures, The British Museum, https://www.britishmuseum.org/blog/history-storytelling-through-pictures (last visited Dec. 21, 2022).
[5] See Shakespeare’s Globe, Fact Sheet: Audiences, https://teach.shakespearesglobe.com/fact-sheet-audiences#:~:text=Who%20came%20to%20the%20theatres,all%20their%20spare%20time%20there (last visited Dec. 21, 2022).
[6] See The Victorian Age, in The Norton Anthology of English Literature 1874-76 (M.H. Abrams & Stephen Greenblatt eds., 7th ed. 2001).
[7] See, e.g., Hope Reese, Why Is the Golden Age of TV So Dark?, The Atlantic (July 11, 2013), https://www.theatlantic.com/entertainment/archive/2013/07/why-is-the-golden-age-of-tv-so-dark/277696/.
[8] Nielsen, Streaming Claims Largest Piece of TV Viewing Pie in July (August 2022), https://www.nielsen.com/insights/2022/streaming-claims-largest-piece-of-tv-viewing-pie-in-july/.
[9] Ruth Anne Robbins, An Introduction to Applied Storytelling and to this Symposium, 14 Legal Writing: J. Legal Writing Inst. 3, 3 (2008) (“Storytelling is the backbone of the all-important theory of the case, which is the essence of all client-centered lawyering.”).
[10] Kantar, 85% of US Households have a Video Subscription Service (Jan. 26, 2022) https://www.kantar.com/north-america/inspiration/technology/85-per-cent-of-us-households-have-a-video-subscription-service (last visited Dec. 21, 2022).
[11] E.M. Forster, Aspects of the Novel 69-70 (Oliver Stallybrass, ed. Reprinted with a New Introduction, 2005).
[12] Forster provided an example that has been cited frequently:
‘The king died, and then the queen died’ is a story. ‘The king died, and then the queen died of grief’ is a plot. The time sequence is preserved, but the sense of causality overshadows it. . . . Consider the death of the queen. If it is in a story we say: ‘And then?’ If it is in a plot we ask: ‘Why?’
Id. at 87.
[13] John Yorke, Into the Woods: A Five-Act Journey into Story 217 (Paperback ed. 2015).
[14] Id. at 46.
[15] See also John Truby, The Anatomy of Story: 22 Steps to Becoming a Master Storyteller 40 (Paperback ed. 2008) ([The story structure steps] are the steps that any human being must work through to solve a life problem.”); Bird, supra note 1 at 61 (“Your story is not about your hero’s life. Your story is not about your hero’s day. Your story is about your hero’s problem.”).
[16] See Thomas C. Foster, How to Read Literature Like a Professor: A Lively and Entertaining Guide to Reading Between the Lines 1-6 in the chapter, Every Trip is a Quest (Except When It’s Not) (2003).
[17] Ross Guberman, Point Made. How to Write Like the Nation’s Top Advocates 51-67 (2d ed. 2014).
[18] John Gardner, The Art of Fiction: Notes on Craft for Young Writers 42 (Vintage Books ed. 1991).
[19] James B. Stewart, Follow the Story: How to Write Successful Nonfiction 231-34 (1998).
[20] See also Guberman, supra note 17 at 57-59 (citing Stewart for how this idea can be used to replace conclusions in fact sections with stories that allow the reader to infer the same point).
[21] Bird, supra note 1 at 89 (emphasis in original): “You can get an audience to care about many different types of [main characters] whether good or evil, brilliant or foolish, but here are two qualities that every [main character] must have: The [main character] must be active and resourceful.”
[22] See generally Truby, supra note 15.
[23] Id. at 57-62.
Finis
