Licghse to Tell, 0916 ALBJ, 77 The Alabama Lawyer 330 (2016)

Author:A W By Stephen D.Heninger
Position:Vol. 77 5 Pg. 330

Licghse to Tell

Vol. 77 No. 5 Pg. 330

Alabama Bar Lawyer

September, 2016

A W By Stephen D.Heninger

James Bond was Ian Fleming's character on Her Majesty's Service with a license to kill.

(007)1 That's quite a broad and terrifying governmental license. As members of the bar, you and I also have a unique license issued by our supreme court. We have a "license to tell" stories, our client's stories about something that has gone awry in an ordered society. Think about that license. No other profession has that license even though they tell stories for a living or for entertainment. Journalists don't have a governmental license to tell stories or write editorials. Authors don't have a license-they have a publisher. Songwriters and poets don't have a license. Matthew, Mark, Luke and John didn't have a license. The Federalist Papers weren't written by people with a license. All of those professional storytellers had a story and point of view but they didn't have a "license to tell."

We have stories, points of view and a "license to tell." Unlike those other professional storytellers, however, we have restrictions that put boundaries and burdens of proof on our craft. We must tell stories that are supported by factual evidence, legitimate inferences and the law. We don't just write or speak stories-we use the dynamic examination of witnesses and documents to tell the story. Moreover, our audiences are summoned by force of law to come to court and serve as jurors as opposed to people who voluntarily consume and pay for other storytellers' works.

Despite those differences, the elements of what makes a good story are common ingredients. A good story (whether told in court or elsewhere) answers three basic questions: 1) What?, 2) So what? and 3) Now what?

What happened and why did it happen? So what-"why should I care?" Now that we know the story and have some interest in it, what happens next that wouldn't cause us to consider something important without this stimulation? "Now what?"

While we have the right (indeed, the legal duty) to rise and speak on behalf of our clients, there is no corresponding duty on the judge or the jury to listen or pay attention if they find the story unworthy of their efforts. The message of the story is doomed if there is no answer to each juror's internal questions: "Why should I care?" or "So what?" It is only when this "license to...

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