What’s Your Story?
Trial consultants often emphasize the importance of a clear and persuasive narrative. Stories have long been told as a way to explain why things happened as they did (Homer’s Iliad, e.g.) and psychologists have long understood the role stories play in processing and understanding events. Trial lawyers frequently study the science of storytelling and typically recognize and embrace the value of strong narratives. Plaintiff attorneys, in particular, have honed their storytelling skills and become experts at fleshing out stories with villains, victims, motivations, and plot twists. But how narratives should be used by the defense has always been less clear.
Does the defense need to have a competing story? Previous research has been split on this issue. While some researchers have advocated for a competing story, others have suggested that the defense needn’t offer a competing story to prevail—it just had to shoot holes in the plaintiff’s story. This latter view is consistent with the way that logical and legal argumentation work—when Person A argues for X, and Person B simply has to prove that X is not correct. And likely due to its logical appeal, this is the approach most often adopted by defense attorneys at trial. However, because juror decision-making is not as clean or linear as a point-by-point tally, we would encourage attorneys to focus on a competing story approach instead.
A recent study of scientists using narratives in their research articles confirms the power of stories. Scientists are accustomed to the standards of objectivity and rationality, able to focus on the facts alone to construct their own causal relations. But this study demonstrated that scientists who used narrative elements in their articles were much more likely to be cited by other scientists. In the academic community, citation is a reflection of influence and acceptance—and even accounting for other factors known to influence citation, stories facilitated the uptake of information and influence.
Of particular interest to us was the description of the problem scientists faced as they wrote up research: the volume of scholarly publications is increasing at a tremendous rate, sometimes doubling within 5-6 years. This makes it difficult for the reader to make sense of so much information and for the writer to be heard amongst so many voices. Similarly, jurors are expected to organize and make sense of a huge volume of information and attorneys are working diligently to be heard in the midst of competing information. This research demonstrates the superiority of narrative presentations over expository presentations in such circumstances.
So rather than trying to pick apart the plaintiff’s story, we suggest that you have your own story—and not simply bullet point themes, but a well-considered narrative that explains the parties, the series of events leading to the lawsuit, and the motivations of all involved. Such narratives not only provide context and meaning for the evidence, but they increase juror recall and provide reasons for a juror to hold firm in deliberation. Jurors, like all of us, process information in the form of a narrative, and therefore, will describe the case to others as if it’s a story. When deliberations begin, be certain that you’ve given them a powerful and memorable story to tell.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
