It is a truism among trial lawyers that compelling stories win cases.
Jim Perdue, a trial lawyer in Texas, wrote a trial advocacy book literally titled Winning with Stories: Using the Narrative to Persuade in Trials, Speeches & Lectures. I’ve written several times before about studying the methods of the great storytellers of our times and of classical times and how juries respond to the emotions conveyed by counsel. The cynics might say we are doing nothing more than scheming to manipulate the emotions of jurors — like when a judge wrongly let defense lawyers drive an inadequate security / wrongful death case completely off the rails by discussing the Reptile book — but trial advocacy isn’t about misrepresenting yourself to jurors. It’s about choosing the most persuasive form of advocacy among many honest options.
Cases don’t come to us with summaries attached telling us which points to emphasize and how to construct the presentation of evidence at trial. Perhaps worse, the structure of trial, particularly the way in which each witness testifies fully before the next witness is called and the requirement that a foundation be laid for all testimony, is almost designed to prevent the jury from understanding what really happened. I’m fond of telling young lawyers and clients to recall the last great book, play, or movie they read or saw — perhaps Inception or Hamlet or Harry Potter — and then imagine if they had to figure out what happened based on nothing more than long, convoluted question and answer sessions with each of the participants. Would you have any chance of understanding what happened if you sat as a juror on the the posthumous trial of Hamlet?
We all know a trial lawyer needs to turn that jumble of evidence into a story, but what story should that be?
To that end, let’s turn to John Reed, a rather unusual writer who, for example, successfully constructed a “new” Shakespeare play by mashing up lines from Hamlet, King Lear, Macbeth, Othello, Romeo & Juliet and Henry V into a cohesive narrative. In the latest Rumpus he rails against the commercialization of fictional narrative, with a couple interesting observations for those of us outside of literature:
To this day, sin, suffering, redemption is the primary Western story. In movies, in television, in cross-cultural memoirs (which must accept the Western story to be culturally significant) and in fiction. Harvey Pekar, in his recent collection, Huntington, West Virginia on the Fly puts a percentage to equation: 99% of what we encounter is establishment narrative.
In West Virginia and the body of his work, Pekar understands that a story can be told of any of us, without forced structures or prerequisites—because every man, every woman’s life, is an allegory of our times, and in the broader sense, existence itself. …
The distinction—from life or from edict—happens to be the customary distinction of the literary v. the non-literary work. The logic:
—In literary works, the structure is derived from the content.
—In non-literary works, the content is derived from the structure.
Max Brand (Frederick Schiller Faust), a prolific pulp western writer of the 1920s and 30s, maintained that there were two types of stories: coming home, or leaving home. The assertion neatly correlates to the classical definition of comedy and tragedy, as well as a content-first v. structure-first division of the arts. The coming home story (usually comedic or “feel good”): the cowboy accepts and/or is accepted by society. The leaving home story (usually tragic or “dark”): the cowboy rejects and/or is rejected by society. Structure-first stories, i.e. coming home, tend to be about assimilation, while content-first stories, i.e. leaving home, tend toward dissent.
Deep stuff, perhaps a bit too deep for me — “Academia, outmoded and provincial, peddles geniuses and nihilists, ignores contemporary writers of far more immediacy, relevancy, talent and accomplishment” — considering that I cited Harry Potter earlier in this post, but there’s a lot we can learn from examining the way in which narratives are formed, particularly this distinction between whether structure drives content or vice versa, and the idea that all stories fall into a couple predictable forms.
One obvious analogy to draw is that the “evidence” is the “content” and so it should drive the “structure” of the presentation at trial — but the evidence is a jumbled mess of known facts, known unknowns, and unknown unknowns. The lawyer has to create some semblance of structure to even begin arranging the evidence for presentation at trial. The core narrative of sin, suffering, and redemption fits much of our work, with the negligence as the sin, the damages as the suffering, and the plaintiff’s lawyer asking the jury to redeem the tragic situation, but it doesn’t get you very far into developing a real narrative for your case.
And then there’s a potentially bigger problem.
Trial lawyers are told and trained that, through experience, they will develop an intuition that will help them assess the arguments that will best persuade a jury — after all, even eight-month-old babies have a functional understanding of morals and ethics — but experience in a wide variety of fields shows us that intuition will often lead us astray:
Kahneman had a bachelor’s degree in psychology and had read a book, Clinical vs. Statistical Prediction: A Theoretical Analysis and a Review of the Evidence by Paul Meehl, published only a year earlier. Meehl was an American psychologist who studied the successes and failures of predictions in many different settings. He found overwhelming evidence for a disturbing conclusion. Predictions based on simple statistical scoring were generally more accurate than predictions based on expert judgment.
A famous example confirming Meehl’s conclusion is the “Apgar score,” invented by the anesthesiologist Virginia Apgar in 1953 to guide the treatment of newborn babies. The Apgar score is a simple formula based on five vital signs that can be measured quickly: heart rate, breathing, reflexes, muscle tone, and color. It does better than the average doctor in deciding whether the baby needs immediate help. It is now used everywhere and saves the lives of thousands of babies. Another famous example of statistical prediction is the Dawes formula for the durability of marriage. The formula is “frequency of love-making minus frequency of quarrels.” Robyn Dawes was a psychologist who worked with Kahneman later. His formula does better than the average marriage counselor in predicting whether a marriage will last.
We could dismiss the success of Apgar over physicians’ judgment as a scientific example of population statistics taking precedence over mere observations, but the crude Dawes formula’s triumph over marriage counselors in determining the success of a relationship strikes at the very core of what trial lawyers are told to do, which is to somehow peer into the hearts and minds of judges and juries and determine the best way to convince them.
But we don’t even have any raw data to begin such an analysis. What would we use, statistics on how certain juror demographics voted in certain cases? They’ve tried that before and it went nowhere, not least because every juror and every trial is different. Statistics on particular venues don’t work either. Mock trials can help lawyers see obvious problems with certain arguments and evidence, but I’ve yet to see a mock trial that resulted in a lawyer successfully changing their entire narrative.
All of which leads me to believe that excessive strategizing about trial advocacy is counterproductive, a product of our intuition leading us astray with psychological illusions like confirmation bias. Facts win cases. The minimum performance required for a trial lawyer to be considered competent is quite high (and there are many incompetent trial lawyers), and there are differences in style and performance that separate the great trial lawyers from the competent ones, but no one reasonable decision at trial ever sways the case one way or another. Instead of obsessing over tactics, trial lawyers may as well just heed the advice for life of Harper Lee:
[A]lways tell the truth, do no harm to others, and don’t think you are the most important being on earth. Rich or poor, you then can look anyone in the eye and say, “I’m probably no better than you, but I’m certainly your equal.”
Truth is, jurors will respond better to lawyers following those two sentences than any sort of persuasive technique the lawyer can imagine.