People understand, remember, and take action based more on stories than abstract theories. A lawyer can argue the plaintiff’s case is res ipsa loquitur that the blade damaged the plaintiff. Or the lawyer can argue, the spinning blade in defendant’s machine suddenly broke and cut off plaintiff’s hand. Obviously, the second statement is more persuasive and memorable than the first.
Litigation is best viewed as the evolution of stories. Each lawyer, if they are any good, tells and then expands on their client’s story. Filing the complaint, the first step in civil litigation, begins the plaintiff’s story why he or she should recover. The story evolves as the case proceeds. The defendant begins its story in a motion or answer filed against the story in the complaint. If done correctly each step in the litigation process is in service of the side’s story, and builds the logical and evidentiary reasons for selecting one side over the other. Each side pulls one or two winning themes to the fore, and then strengthens those story elements through the tools of litigation.
About two years ago I took a trial advocacy class. Like all the students I expected to learn the technical ins and outs of trial practice using specialized tools and technical trial techniques.That is not what we got. Instead of one of the first sessions being conducted by a lawyer, it was conducted by an actor on how to tell a compelling story. We also listened to “The House of the Rising Sun” by the Animals to decipher what stories could be found in its lyrics. We practiced the craft of writing stories that were compelling, and we told those stories in mock trials. We practiced the craft of using direct examination, cross-examination, and argument to advance our stories so that the jury would be compelled to vote for our clients.
So, how does litigation begin? With development of the plaintiff’s story, not with a formal complaint. Then the complaint that is the first filing in the litigation is a thought through story that can in plain language state the story why the plaintiff should recover. The defendant’s answer is an equally well thought out basis of a theory explaining why the plaintiff should not recover. As the case goes on the goal is to have the jury accept one story or another through the tools of litigation and adopt it as its own. Anything extraneous to the story must be stripped off to make the story of the case as simple and understandable as possible.
At best a story holds the juries’ (or judge’s) attention and demands action. The story about the spinning blade demands that action be taken to make the plaintiff whole. If you find that you are working with a trial lawyer who is not a good story teller, get a different lawyer,
About Foundation In Law
Over a long career as a practicing attorney, Frank Hammond came to realize many prospective legal clients do not know much about lawyering and lawyers – how they work, how fees are set, and how to deal with them. Beginning attorneys also often have little notion of what actual practice involves. This blog is meant to be a guide for both.
Disclaimer: The Foundation in Law blog is not intended to provide legal advice, and no attorney-client relationship will arise as a result of interacting with this blog. You are advised to consult with your own attorney regarding legal questions. The opinions expressed in this blog are those of the author alone. The author is licensed only to practice in the State of Oregon.