Storytelling for lawyers.

• Author: Van Patten, Jonathan K.

INTRODUCTION

There are great souls out there who have extraordinary powers of persuasion. If we have been fortunate, we have encountered several of them over the course of our lives. In ways unique to each, they combine authority and wisdom. They appear in different roles--parents, relatives, teachers, pastors, and even political leaders. Their wisdom has shaped us fundamentally, in ways that are discernible long after they are no longer part of our lives. I did not always understand what my favorite law school professor was saying, but his words had power that pulled me along as I was trying to understand. In the words of Jack Nicholson, he made "me want to be a better man." (1) I do not know how to teach this. It is a gift and we are very fortunate when we are exposed to it, and have the maturity to recognize it.

For the great majority of us who do not have this gift, persuasion is a harder task. We encounter skepticism and resistance. If we are to be successful in persuading someone, we must first recognize that it is his or her decision, not ours. In contrast with the great teacher, the process cannot be from the top down. It must work from the ground up. if lawyers have a general problem in the art of persuasion, it is that they preach too much, but lack moral authority. They do not recognize that the movement toward a decision comes primarily from within the decision-maker. This does not mean we cannot be great persuaders; we simply have to do it by other means.

One of the principal techniques of persuasion comes through understanding the art of storytelling. Storytelling is primal. (2) It can show the way to a common ground that ties in to the basic values of the listener. We all grew up with stories. There is a deep psychological need here. I sense, but cannot fully describe, the importance of stories in my childhood. I am able to see more clearly, however, the importance of stories in the development of my own children. My oldest, now a pathologist in Minneapolis, would absorb words and storylines as if they were the water of life itself. I remember her usual response before the age of two to a story reading was: "More ... more." Frog and Toad, (3) Harold and the Purple Crayon, Where the Wild Things Are, (5) The Velveteen Rabbit, (6) along with the Winnie-the-Pooh series, (7) were the main staples of bedtime reading for all of my daughters. I read these stories hundreds of times. The repetition might be viewed as indoctrination, but it is much more complex than that because, even at an early stage, my kids were not a blank slate. There was already some psychological need there that the stories were addressing. (8) It must be deeply embedded in the genetic code. The stories become part of the moral infrastructure that is being worked out as part of the child's development. As noted by Bruno Bettelheim: "The child intuitively comprehends that although these stories are unreal, they are not untrue." (9) The almost insatiable desire for stories is also reflected in the active fantasy life that kids have with their stuffed animals and dolls, as well as action toys. We do not outgrow this.

The search for meaning is mediated through stories, (10) Stories help to make sense of life. Some stories confirm existing beliefs and prejudices, while others stretch the worldview. (11) They are part of our search for meaning. Movies, for example, are about entertainment, but the better ones are also about meaning. Meaning is not necessarily limited to what is intended by the storyteller. The story may take on additional meaning from its audience. In discussing the popularity of The Shawshank Redemption, (12) director Frank Darabont made the following observation:

The film seems to be something of a Rorschach for people. They project their own lives, their own difficulties, their own obstacles, and their own triumphs into it, whether that's a disastrous marriage or a serious, debilitating illness that somebody is trying to overcome. They view the bars of Shawshank as a metaphor for their own difficulties and then consequently their own hopes and triumphs and people really do draw strength from the movie for that reason. (13) People project their own values on a good story. They identify with characters and their predicament and begin, in the words of James McElhaney, to pull for one side or the other. (14) This is critical for persuasion built from the bottom up. People should not be told what to think. They will reach the conclusion on their own and will hold on to it more firmly if they can relate it to their own life story.

There is already considerable literature on the use of storytelling by lawyers. (15) The purpose of this Article is to articulate specific propositions regarding the techniques of storytelling. While most of what follows is not necessarily new, it is useful to collect these propositions and set them out in a systematic and accessible format.

TWENTY-FIVE PROPOSITIONS ABOUT STORYTELLING

(1.) Store Is Not a Collection of Facts.

The Story Must Have At Least One Theme To Give It Meaning.

Themes are essential to the story. They make sense of the facts. A story without a theme is not a story. It is chatter. What is a theme? It is a short statement that articulates a principle underlying a story. A principle is not a fact, it is a rule. It helps to evaluate the facts. A principle points to a resolution or conclusion. It provides direction for the story. For example, "promises should be kept" may be the underlying principle for a breach of contract case. It identifies the relevant facts, brings them together, and shapes how the story is told by giving it a cohesive moral structure. No one likes a bully. In the eyes of the law, all are equal. Fairness requires notice and the opportunity to be heard. One should not complain about a problem that is the result of his or her own choice. These statements are propositions that drive the argument. They also can drive the story.

A theme has organizing power. (16) It helps the storyteller to decide what to include and what not to include. It supplies the measure by which to sort the facts. It provides a focus through which to highlight the important facts and a filter through which to exclude or diminish lesser or countervailing facts. The theme reflects a moral infrastructure by which to judge the facts.

If the theme resonates with the listeners, it can become so powerful as to override any opposing narrative. Embedding a theme in a story becomes a way to tie into people's own narrative stories that drive their decision-making processes. (17) The theme will shape the story all the way down to the details, especially the word choices. Word choices should reflect and reinforce the theme. (18) The theme will also supply continuity to the story by connecting the dots and even allowing the listener to anticipate how the dots will be connected, thus making the connection harder to dislodge in the listener. A good story allows the listener to get to the conclusion just slightly ahead of the teller.

A story may have more than one theme. The themes may be complementary or in tension. In such case, one of the chief tasks of the story will be to work through the themes to arrive at a resolution, at least in part, if not completely. Although posing some organizational issues, different themes will actually work to keep the story manageable for the listener. Themes are a sorting device. They help to collect and organize disparate parts of the story. They highlight and they bring focus. But, most of all, they may touch deeply embedded emotional beliefs or themes already held by the listener. They are essential in making a connection with the one who is to be the decision-maker.

For the law student or the lawyer, it is not enough to look at a case and begin to recite the facts. You have to read the whole thing, so that you begin to figure out what is important to the story. Most times, it takes several readings. One of the most effective ways to break down a case is to work backwards from the required legal elements and highlight them in the facts. The facts do not necessarily have significance on their own. They are like the guitar string to the sounding board. By themselves, they do not resonate; they produce a sound like a dull thud. But, plucked next to a sounding board, the vibrations produce a beautiful tone. Facts without law, nothing. Facts next to the law, beautiful music. In the same way, the underlying themes will make the facts resonate. Stories are about meaning, not just information or entertainment.

How does one find an appropriate theme? You should probably start from the facts as you know them. Try putting them together in chronological order and see if anything on the order of principle emerges. Work through them with different starting points and variable sequences. See what emerges as a simple explanation of why you should win based on the facts as you know them. (19) If working from the ground up doesn't produce anything that seems right, you might then go to external sources. A book of quotes is a good (20) place to start. The best one, by far, is Thomas Vesper's collection of quotes. This may work, if you read widely and choose carefully. It may be a little artificial in that you may then try to impose meaning on the facts that doesn't quite ring true. In other words, don't distort the facts to fit the theme. Don't let the theme get ahead of the evidence. Another way to find a theme is to find the type of argument that fits your intuition about your strongest point. By type of argument, I mean the arguments classified by classical rhetoric. (21) See if you can recognize the structure of the argument that you are trying to make and then, possibly, how a principle, or at least a metaphor, emerges from that. For example, the argument from comparison focuses on similarities and differences. (22) "A wound, though cured, yet leaves behind a...