Dr. Richard Waites
Chief Trial Psychologist
Storytelling & Other Tools for Persuading Jurors in Complex Cases
“Of course, it is all about the storytelling – nothing more.”
American Bar Association, 1986
Storytelling is one of the most powerful ways of persuading jurors. Its persuasive power is due in large measure to the fact that storytelling creates a common bond or shared experience between trial attorneys and jurors. As human beings, we have an innate ability to tell stories and a desire to hear stories. Researchers have long realized that the easiest way to get people to accept a new idea is to link it to an idea or concept they already know and understand. Yet, the art and skills of storytelling are rarely taught in law school.
- Today, we know that children’s learning and value systems develop largely through storytelling and the inference they associate to their real-life and vicarious experiences.
In addition to teaching survival principles or moral lessons, the stories that are remembered and used as problem solving guides, tend to be “entertaining” at some level. The word “entertain,” by definition, means to “hold the attention of.” In the courtroom, if a trial attorney is to succeed at holding the jurors’ attention, stories must be “entertaining” and create a sense of anticipation and expectation in addition to relay new information that will educate the jury about one’s case. Most importantly, the stories and the storytelling process create a unique opportunity for trial counsel to embed a suggested problem solving strategy to jurors.
In his text, Nothing But The Truth, Professor Lubet identifies three major objectives of storytelling. He concludes that storytelling:
- Establishes a “theory of the case,” which is a plausible and reasonable explanation of the underlying events, presented in the light most favorable to the attorney’s client;
- Develops the “trial theme,” which is the lawyer’s way of adding moral force to the desired outcome;
- Provides a coherent “story frame,” which organizes all of the events, transactions, and other surrounding facts into an easily understandable narrative context.
In Courtroom Psychology and Trial Advocacy, the author addresses the selection criteria for selecting a story to tell jurors. Some of the considerations that he notes involve:
- The story and the style of telling should complement the style and character of the storyteller (the trial lawyer);
- The story and storytelling should enhance the jurors’ perception of the lawyer’s genuineness or belief in his or her case;
- The story itself must be believable and congruent;
- The story should be easy to follow and contain a simple point or moral that demonstrates purpose and meaning to jurors;
- In order to ensure retention, the story selected should have an opening that sets the stage, develops characters, describes the action, creates suspense, and creates a mental visualization for the juror; and
- Powerful stories typically have little dialogue and rely upon powerful words or images.
“A theme is a message that gives meaning.” In this text, the author asserts that “themes and messages are at least as important as the key facts of the case.” He also conceptualizes that there are three principles that lawyers must appreciate if they are to develop compelling case themes. The first principle requires that counsel understand the main types of themes. Themes can be categorized into two principle types: descriptive themes and evaluative themes. Descriptive themes, which characterize particular pieces of evidence, are rarely determinative of case outcomes. In contrast, evaluative themes, which characterize the overall principles for which the case stands, are often outcome determinative.
The second principle of developing compelling case themes is to formulate themes that help jurors organize case information along lines that resonate with the trial attorney’s position in the dispute. Finally, compelling themes must fit well with jurors’ preconceived attitudes and life experiences, and must “trump” the opposing party’s themes in fundamental importance.
Research and experience have determined that there are several factors that are characteristic of the most persuasive themes for a case. They are listed here in this chart.
THE MOST PERSUASIVE THEMES
- Transcend the facts of the case
- Are emotionally powerful (generally taking the moral “high ground”
- Address the larger significance of the case
- Evoke powerful images
- Can be expressed visually, in words and through tangible means
- Match juror needs to “do the right thing”
- Provide consistency throughout the case presentations
- Ensure consistency with other themes
- Structure a contextual framework for evidence and testimony
In order for themes to be persuasive, they must resonate with jurors’ attitudes, beliefs and value systems. The sources for possible themes are limited solely by trial counsel’s imagination. Some of the more readily available sources for themes are: religious teachings, fables/fairy tails, ancient mythology, accounts of historical events, classical literature, media reports, and personal experiences. The defining criteria for identifying the right themes for the case can be reduced to one simple question: “What is the most powerful story we can tell about the case based upon the experiences and attitudes of the likely jurors?”
The storyteller can organize the story in many different ways. While stories often have unique elements, most stories have a plot. Contained in this plot are several components, included among these are: characters, settings, action, problem, climax and resolution. Within the story’s characters, there’s usually a protagonist who wants something and an antagonist who tries to interfere or disrupt the protagonist’s pursuits. Persuasive stories typically have an “inciting incident,” which is a pivotal point at which the balance between the protagonist and the antagonist is disturbed. The suspense in the story typically builds to some form of climax. The persuasive story ends in some sort of resolution, which often offers a glimpse of insight or a “lessons learned” section.
Persuasive stories typically gain power, as they increase in proximity to the audience and the audience’s own likely experiences. The key to persuasive storytelling is the ability to connect with the audience and create a sense of immediacy. Accordingly, persuasive storytellers typically offer stories that are told in present tense, as if the story was happening now, rather than as a “dry” historical account. Persuasive storytellers adopting a “present-tense” rendition of their stories typically create the immediacy and proximity that resonates with jurors’ attitudes, beliefs and value systems.
Related Tools for Trial Attorneys in the Courtroom
Several key principles underlie the development of powerful and persuasive case stories. First, the story must appear to the jurors as organized and flow easily. Jurors draw significant inferences from how “organized” you appear. Most themes provide the juror with some sort of orientation, but effective case stories give the juror a sense of direction, which is achieved by having a clearly stated agenda and easily understood topic points. Using transition statements between major topics conveys a sense of organization and preparation.
Second, effective storylines have a way of connecting with the juror and his or her life experiences. To some degree or another, the juror must be able to imagine themselves in the story. Careful word choice and cautious use of analogies accentuate the perception of being prepared in the minds of the jurors.
Third, the persuasive impact of the case story is often influenced by assorted nonverbal communications. Eye contact is often critical in persuasive communications.
Finally, effective storytellers understand the importance of visually anchoring their stories with demonstratives and other visual stimuli. The process of persuasion is multidimensional and involves all five senses.
One of the greatest benefits of the most recent developments in scientific research methodology is that we can use focus groups to explore and mock trial research to confirm the effect of the story and storyteller on potential jurors. When properly conducted, these research designs yield reliable data that can enhance persuasion. If ignored, not only does a trial attorney miss an excellent opportunity to establish a common link with jurors, but often must endure the reality that opposing counsel will take advantage of the powerful persuasive impact of storytelling. Almost every type of case can benefit from the objective evaluation of contemplated themes, theories and proposed storytelling approaches. Today, information based on reliable jury research methodology can yield scientifically-derived recommendations that enhance case themes, while conforming to the resource limitations of almost every case.
The great body of scientific research that has addressed the competency of jurors to decide cases that involve complicated subject matter and complex procedural or legal issues has concluded that jurors are quite capable of making well reasoned decisions in such cases. This brings us to the important conclusion that instead of continuing to handicap jurors by denying them basic learning and investigatory tools in the courtroom, courts have correctly determined that the better approach is to identify which tools will coincide with the ends of justice and which will help jurors in their quest to reach courtroom decisions that we can all be proud of.
For more information, please contact the author at The Advocates.