How many of you decided to read this blog post because the title suggested that I was about to tell a story? What if I had use the alternative hook “Narratives and Storytelling in Case Strategy” as my opener? Would you still have been as interested? (I’m betting not.)
As this article by Jeremy Hsu outlines, we human beings are programmed to attach to stories. For thousands of years we have utilized stories to teach, entertain, preserve history, and create social bonds. Long before the written word, we spun tales around campfires and depended on the preservation of these words for future generations to avoid the mistakes of the past. In essence, stories are our memory.
Given this propensity, why do some attorneys try to keep jurors narrowly focused on very particular facts or arguments when presenting a case? Sure, there may be some lip service to a narrative or a key theme, but how often do trial attorneys start with “the story” and carry it as a blueprint for jurors through the entire trial? How often is the witness testimony organized by the principles of “the story” and the demonstratives created with “the story” in mind? How often is “the story” at the base of every major strategic maneuver in trial presentation?
I would argue that the narrative must come first and then the facts can be organized (and often pruned) to support the tale told. Trials are not about who has the heaviest bucket of facts, but instead about who is able to get jurors to attach to their plotline. The victor is the side that is able to ride this juror attachment into a favorable deliberation where the group remembers and repeats the facts of “the story” they liked most.
A recent study out of Princeton University published in Scientific American demonstrates this exact point. Through the utilization of active brain scans, researchers demonstrated that a good story can actually synchronize people’s brains through a form of neural coupling. (Think Vulcan mind-meld, but without the physical contact.) However, if the listener does not understand the story, then the bond is broken and the listener disengages.
A post on the blog Neuromarketing makes the same point through a discussion of advertising and The Narrative in the Neurons (by Wray Herbert). In this post, it is explained that fMRI imaging studies demonstrate that successful storytelling actually activates areas of the brain that increase the experiential effects. People actually “understand a story by simulating the events in the story world and updating their simulation when features of that world change.” (Click Here for another overview.) While this research is focused on the written word, it further clarifies the power of a well-crafted narrative.
The law can be a foreign language to many jurors. Making things more difficult is the high importance placed on jurors’ correct interpretation of technical words. (As many recall from grammar school) when individuals are unsure of the meaning of a word, they search for context clues to enlighten them. Without this contextual guidance, the words will often be discarded and forgotten. I would argue that when presenting a case at trial, the best context an attorney can provide is a well-honed story that causes jurors to want to hear more. Then, before you know it, they are hooked.
THE END.
Blogger: Matt McCusker
