Join me every month as I talk tips for upping your trial performance game. For the first installment of Tad’s Trial Practice Tips, I’ll be discussing how storytelling can be used effectively during trial and why it’s innately powerful to show a story to the jury instead of simply tell one. Discussions are welcome in the comments section.
— Tad Thomas
From the dawn of time, stories have held power. Inside aboriginal caves and ancient stone dwellings, smudged figures depict stories of early humans hunting for food and providing for their families. Olden folk tales, religious hymns, and songs from battle tell cautionary tales, tales of triumph, and tales of teaching.
For as long as humans have been in existence, storytelling has been one of the primary ways we’ve communicated. Folklore, nursery tales, and religious texts were among the first written pieces of storytelling evidence we have access to, but the act of telling a story predates any and all forms of written language. It existed in oral form and through theatrical enactment—through songs, lore, chants, and even in verbal cues and sounds, as well as in other artistic forms such as rock art, wooden carvings, and dance[i].
Stories—in all the forms they’re told—shape life, and shape human experience. Stories teach us lessons and teach us about life because stories show us what has happened or what may happen instead of simply telling us. All writers and storytellers are familiar with this popular bit of writing advice: “Show. Don’t tell.” Stories are powerful because they do simply that. They show us life instead of simply telling us about it.
A good story makes us feel like we’re truly there—experiencing everything that character or depiction is experiencing. When we watch the latest episode of Game of Thrones, we’re in the middle of battle with our favorite characters. When we read a good mystery novel, we’re strolling down a dark street devising the next move to figure out who killed who. A good story will make us feel invested, like all our odds are on the table as well. We’ll feel what the characters are feeling—whether that’s excitement, betrayal, happiness, or heartache. Perhaps all four if it’s a particularly engrossing tale. A good story will never tell us what to feel. It doesn’t have to.
No one likes to be told what to do—or, especially, how to feel. This is why storytelling as a medium holds such power. It shows us life and lets us do with it as we will. The listener or reader holds the power when enjoying a good story, and a good storyteller knows how to hand off that power in an influential and impactful way—to teach readers and listeners about life and show them something new they’ll walk away having gained value from.
As trial lawyers, it’s crucial for us to remember that we’re persuasive storytellers when presenting in front of a judge and jury. Our role is to share the experiences of our client and do so in a manner that helps the jurors feel what our client was feeling at the time of the incident without coming out and blatantly saying, “Why aren’t you angry yet?” Jurors don’t like to be told how to feel, either. Instead, the goal is to make them feel as though they’re right next to the client during the time of the incident.
The jurors hold 100% of the power in a jury-based trial. Our job is to simply hand off that power in an impactful manner. Only the jurors can decide how they feel. They need to understand the emotions our client felt and feel them for themselves. This can only be achieved if they are shown what happened as opposed to simply told. And that’s where storytelling comes in.
Stories: Where Legends Are Born
At the heart of every story—whether it’s told, read, seen, or etched in stone—is a representation of life, of memory. In folk stories, a cautionary tale told to children represents a retelling of an event that took place (or may have took place) that perhaps could have been avoided. These stories show children that actions have consequences—a lesson that tends to sink in better when we see it happen for ourselves or to other characters rather than explained in a textbook or told to us in a lecture.
A wall of cave paintings depicting a group of hunters chasing a wild beast is a retelling of a memory. We see these hunters set off on a perilous adventure, face danger, and come home victorious. Those who etched the figures looked up to the hunters for risking their lives and wished for future generations to remember their stories just as vividly as they did. The paintings inspired youth to chase after their own adventures and taught them that courage awards those who are brave for the sake of helping others.
Over time, it’s common for such depictions to grow more powerful to each generation. We see this time and time again throughout storytelling, whether it’s a set of cave paintings, a simple nursery rhyme, a fantasy novel, a movie, or a comic book. The figures and characters depicted become heroes. The heroes become legends. The lessons readers and listeners learn become paths of life that shape future heroes.
Grimm’s fairy tales are popular to this day—and exist in thousands of different forms and retellings. The characters within The Lord of the Rings and Star Wars have become household names even to those who aren’t fans of the genres. The stories have reached legendary status due to the myriad of media forms they exist in (yes, even internet memes count), the number of retellings that occur, and the power they wield to those who proudly call themselves fans.
The storytellers of these tales—including the original writers, the newer writers/producers, and the actors who breathe life to the characters—have become heroes and legends themselves. Aspiring writers all over the world hope to one day become the next Tolkien. His legendary status and stories have taught writers to follow their dreams, tell the tale only they can tell, and to not fear getting a little wordy at times.
There’s another reason why stories and storytellers reach legendary status, and that’s the fact that the human mind doesn’t operate in a linear fashion when recalling memories. We do not often recall the details of everything that has happened in our lives—unless a memory is paired with a strong emotional response. Research shows that emotions play a major role in all our brain functions, including attention, perception, learning, problem solving, and memory.[ii]
We form memories based on emotions we feel at the time the memory initially occurred. When we recall a fond memory of a childhood holiday, for instance, we remember the excitement we felt and the surprise of getting the gift we wanted more than anything else. When we think back at a time when we lost a loved one, we might not recall every detail, but we often remember the sorrow we felt, and the actions we took following that sadness. Emotions often act as the glue that solidifies our memories. Emotions hold everything together, tied together like a package.
When those emotions are positive and reinforce our lives with a great deal of value, we pair those memories with positive emotions and the memories become even more “legendary” within our minds. Over time, the emotions may be recalled in a bittersweet way—a concept often referred to as nostalgia. When emotions are more on the negative side, those memories sometimes shift into fears and trepidations.
When an attorney is speaking to a jury about their client’s story, a simple list of facts and statistics will not illicit an emotional response from jury members. As social creatures, humans depend on emotional responses to not only pair with memories in order to recall them later, but to learn from information that’s in front of us. This is why characters and storytellers who reach legendary status resonate so strongly with us. When we feel strong emotions about another’s experience, we place ourselves in that person’s shoes and can feel as though we really experienced the event ourselves.
When a juror can pair the story of a plaintiff or defendant with memories in their own life, emotions they recall experiencing, or another story that may have resonated with them, they’re able to become more invested in the plaintiff’s or defendant’s story and make a decision they feel satisfied about. Humans are naturally compelled by human stories. When a trial attorney can utilize strong engagement and persuasion methods to make a client’s experience compelling, they’re letting the jury do more than listen. They’re letting them participate.
The Structure of Storytelling in Trial
Lawyers aren’t instructed on how to be good storytellers in law school. The act of “storytelling”—which includes the word “story” which seems to imply something fictitious—may seem antagonistic to the fact that the role of an attorney is to gather all the facts and evidence of a case and discern truth from those facts. Persuasive storytelling, however, is merely a form of persuasive speaking—one that includes experiences told in a story-like format in order to strengthen the argument and illicit audience engagement. This type of storytelling is just as crucial to a strong courtroom presentation as the facts themselves.
When a lawyer presents a case to a courtroom and jury, they’re taking the facts and weaving them into a retelling of what their client has experienced. They’re recreating the story and showing it before the jurors. A lawyer who’s skilled in the art of persuasive storytelling will engage and interact with the jury, giving them room to add their own ending and feel invested in the outcome of the case.
Research has shown that jury members depend on and refer to stories that attorneys use during deliberation.[iii] This makes sense when you recall that stories, when the audience feels emotionally invested in them, are easier to remember than facts alone. A well-told persuasive story will stay fresh in a juror’s memory, making that story even more powerful. That juror will also have an easier time recalling specific details about the case.
But how do you become skilled in the art of persuasive storytelling when it isn’t taught?
At its core, storytelling—like all forms of writing and public speaking—comes down to structure. Here’s a basic outline of how a courtroom presentation might look when it’s created with strong persuasive storytelling elements:
- Introduction – Any great story and argument has a powerful introduction. This is when you’ll want to bring your client to life for the jury. Introduce your client and their case. Personality matters, as does relatability. Present the facts, but don’t forget that this is the perfect opportunity to help the jury become emotionally invested.
- Setting the Stakes – You’ll then want to set up the stakes and tell the jury what’s at risk. This is done by explaining what your client has to lose or has lost and why that matters. In a personal injury case, for example, what have your client’s injuries caused them to lose out on? What have been the financial, emotional, and personal ramifications of the incident they’ve experienced?
- Presenting the Case – Now it’s time to go over the incident and/or crime. Focus on showing rather than telling. This means expressing the facts in a way that brings the jurors right to the scene of the incident. Explain using sensory details whenever possible. What did the scene look like? How was the lighting? Did the weather have an impact? Remember, storytelling is powerful when the listener is brought directly to the scene.
- Showcasing Evidence – Evidence is a major part of every trial. When going over evidence, remind the jury about its significance. The details are important, but so are the how and why. Why does this testimony matter? What is the discovery log proving? This is the ideal time to introduce new evidence that throws a bit of a curve ball into the mix—something surprising that your audience may not have expected but factually strengthens your case. In fiction, this is called a plot twist. In trial, these are often the moments jurors recall most easily—especially when they’re invested in the outcome of a case.
- Tying Everything Together – When wrapping everything together in a cohesive conclusion, remember to frame your argument similar to how you started it. Elements like tone, inflection, vocabulary, rhythm, and word choice matter. This is the strongest point of your argument, so make every sentence and word count.
Before finalizing your argument—especially if you’re just starting out—it’s crucial to have a “test” audience listen to your proposed arguments before you head to court. A focus group can tell you the strengths of your argument and its weaknesses, as well as point out areas where jurors and opposing counsel could potentially see gaps. All experienced storytellers have trusted focus groups. As creators, we’re our own harshest critics. An objective pair of eyes or ears is often the best way to make improvements.
The number one piece of advice any experienced storyteller will tell you is, “Practice, practice, practice.” Learning how to be a persuasive storyteller primarily comes down to practice. The more you get out there and tell a persuasive story and argument, the better you’ll get at creating and sharing convincing stories.
Bringing Story to Life, Bringing Life to Story
When an attorney becomes invested in a case and client, it shows. It shows not only in how they treat their client and the facts of the case, but also how they present the case. They’ll argue their case with passion and conviction—utilizing strong, persuasive storytelling methods that bring the situation and stakes to life. They’ll show the jury what happened and why—and the jury will have no choice but to make their decision based off their own emotions, values, and experiences. This ensures the best outcome for the client possible.
This is the goal of any lawyer—to want the best outcome possible for their clients. At the end of the day, attorneys are storytellers of truth, of life itself, and of justice. We share the stories of our clients and become the voice of our clients. That’s when our storytelling powers shine the most—when we’re given an opportunity to use that voice to help someone in need.
[i] Cajete, Gregory, Donna Eder, and Regina Holyan. Life Lessons through Storytelling: Children’s Exploration of Ethics. Bloomington: Indiana UP, 2010
[ii] Chai M. Tyng, Hafeez U. Amin, Mohamad N. M. Saad, and Aamir S. Malik. The Influences of Emotion on Learning and Memory. US National Library of Medicine National Institutes of Health. 2017. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5573739/
[iii] Paula L. Hannaford et al., The Timing of Option Formation by Jurors in Civil Cases: An Empirical Examination, 67 U. TENN. L. REV. 652 (2000).