Category Archives: Narrative

December 22, 2016

Experts, Tell a Story

By Dr. Ken Broda-Bahm: 

18688463_s

By now, it is familiar advice to trial lawyers: Tell a story. Jurors and judges will appreciate the familiar structure, pay greater attention, see the world from your party’s perspective, and have an easier time remembering and using the information. We might think that the advice applies to attorneys, especially during opening statements — and it does. But it doesn’t end there. Rather than being just a handy technique for organizing the attorney’s first presentation, the narrative is a paradigm for how people learn new information and use it. So the advice to “Tell a story” applies in settings wherever people are being taught new information. An expert witness’s trial testimony is one such setting. 

Scientific experts, whether talking about chemistry, design, medical care, or economics, can be hard to follow. Not only is there the unfamiliarity of the scientific language, but jurors and other fact finders often lack a basic understanding of the method and the process as well. Present that in the wrong style — a style that assumes motivation and attention, for example — and it is easy for your audience to shut off. One thing that helps is to frame the unfamiliar science in the familiar structure of the story. A recent study of published scientific literature (Hillier, Kelly & Klinger, 2016) looks at 700 scientific papers on climate change, asking what factors in a crowded literature made some papers more influential than others. What they find is that those papers written in narrative style are more likely to be used and cited in other publications. First author, Annie Hilliar, wrote in a ScienceDaily release,”The results are especially surprising given that we often think of scientific influence as being driven by science itself, rather than the form in which it is presented.” But when it comes to comprehension and influence, form does matter. Science presented in story form made for a more influential contribution.  The expert in trial is not interested in being cited, but does want to be used — by a jury later in deliberations, for example. So rather than following an analytic outline that blandly covers credentials, methods, and conclusions, it is better to turn the testimony into a tale of sorts. In this post, I will break down the steps and provide an example of what this means.  

Story means more than just sequence, and requires more than just following a timeline or interspersing an “and then…” throughout your message. Instead, a story requires the presence of a handful of structural elements that we have come to expect. That story structure helps in providing some recognizable landmarks in your message. 

For each of the components below, I will include an example that was used by an expert I prepared in a past case. The expert, an economist, testified on damages as well as causation on behalf of a products liability plaintiff in a suit over long-term damage caused by an agricultural chemical. 

Setting

A scene or situation creates a framework where the action takes place. In scientific testimony, that framework can be the field of scientific inquiry, or it can be a situation giving rise to the challenges addressed by the expert testimony. 

Example: In the agricultural chemical case, the setting is a field — a literal field of crops. That field includes the chemical found to have unexpected long-term effects on crops, but it also includes every other factor that determines yields: water levels, sun and temperature, pests, normal plant diseases.  

Character

The main character in the drama is not necessarily the hero scientist. It could be, but it could also be more abstract: a central idea or concept.  

Example: The white whale for the agricultural economist was the idea of “unique losses:” reductions in yields that are beyond what is normal and expected at a typical farm. 

Conflict 

Every story needs some kind of tension: a challenge to be addressed, a mystery to be solved, or a who-done-it to be answered. 

Example: For each farm and field, the unique losses need to be found. They need to be identified, quantified, and known to be truly unique and beyond the norm. In the process, the expert can’t make assumptions and can’t blame all losses on the culprit chemical, because that falls into the other side’s story and opposing expert’s critique. 

Resolution

What brings completeness and closure to a story is a solution to the problem, and that solution is also what makes the expert’s story relevant and useful. 

Example: The agricultural economist used historical records and statistical tools, like regression, to control for the other factors: the normal effects of climate, weather, pests and disease. What you are left with after accounting for all of that is the otherwise unexplained effect of the defective chemical. 

Moral 

Example: Either implicitly or explicitly, a complete story often comes with a moral: a boiled-down message or takeaway that does not depend on full recitation of details, but instead states the point simply. 

Example: For the economist, the message is “the process of elimination.” After accounting for all of the usual suspects for why a particular farm or field would perform less effectively than its average, the loss that is leftover is what can be reasonably attributed to the chemical.

It is not enough for those elements to be just present in the testimony if one takes the time to analyze it in that fashion. Instead, they need to be brought out and linked together in story fashion. Direct examination should start by setting the scene, then move to identifying the central actors and framing the conflict, before finally moving to a resolution and a moral. That isn’t just a matter of art, based on the research, it’s a matter of practical advantage. 

_________________________

Other Posts on Story: 

____________________

Hillier, A., Kelly, R. P., & Klinger, T. (2016). Narrative Style Influences Citation Frequency in Climate Change Science. PLOS ONE11(12), e0167983.

Image credit: 123rf.com, used under license, edited. 

August 22, 2016

Don’t Get Lost in Your Own Story

By Dr. Ken Broda-Bahm: 

13953432_s

As this year’s presidential election campaigns move into their final stretch, each side is settling in to its own story. Even as the polls shift from week to week, mostly due to a minority of late undecideds reacting to current events, the positions remain remarkably dug in for Republicans and Democrats. One reason for that, and it affects both sides, is that the stories that provide a foundation for these political leanings tend to be driven more by beliefs than by facts. A recent piece in The Atlantic, for example, takes a look at Trump supporters noting what it calls a “rift between belief and truth” among pro-Trump voters and commentators alike. The piece takes aim at Wall Street Journal commentator Peggy Noonan for blurring the lines between perception and reality when analyzing what Trump supporters believe and how the GOP establishment should be responding. For example, she notes “What Trump supporters believe, what they perceive as they watch him, is that he is on America’s side,” contrasting that with previous Presidents — both Obama and Bush — who, she suggests, were not on America’s side. She also describes Trump’s base as being disadvantaged in the current economy and unprotected by the government. However, as the piece in The Atlantic notesthe facts do not bear that out. Pointing to FiverThirtyEight’s Nate Silver, for example, it turns out that Trump supporters actually earn more than supporters of Bernie Sanders or Hillary Clinton, and pointing to Gallup’s Jonathan Rothwell, it turns out despite claims from Trump supporters of  “suffering because of globalization, …suffering because of immigration and a diversifying country, …I can’t find any evidence of that.”

Of course perceptions matter. But when it comes to forming opinions, the line is crossed though when perceptions become a personal truth. Peggy Noonan may be crossing that line when she reports the Trump supporters’ beliefs, not just as beliefs, but as blueprints for what the Republican establishment should be adapting as its theme and policy direction. Arguably, those who are convinced of a victimhood that the facts don’t support are lost in their own narrative, judging reality based on whether it fits the story, instead of judging the story based on whether it fits reality. This risk of putting the story first and the facts second can occur in any field which is driven by communication. And that means every field, including litigation. In this post, I’ll comment on a few ways those who are crafting and following narratives in court risk becoming lost in their own stories as well. 

Who in Litigation Is at Risk of Getting Lost in Their Own Stories? 

At its root, litigation is a test of competing stories. The side that wins is the side whose story is more complete, more compelling – and this one ought to be most important – more supported by the facts. This central role for story, however, doesn’t make it the perfect means of communication. Stories can obscure as much as they illuminate, and our common tendency to judge reality through a narrative frame can leave us vulnerable. In trial, that vulnerability can affect several actors.

The Juror Who Relies on Feelings Rather than Facts

The court is intended to be the arena of reason and evidence, but the court is also populated by humans who bring in their more general attitudes and feelings. Generally, that is not so much a problem to be solved as it is a fact of human communication that requires adaptation. But in some cases, jurors can end up feeling to such an extent, that they’re actively putting the facts aside. We see that in some mock trial deliberations with the sympathetic juror who cannot find fault with the defendant, but who still wants to see some aid delivered to the plaintiff in the form of damages. Spotting the jurors who prioritize their feelings over the facts can be important in voir dire.

The Advocates Who Focus on Their Own Best Case Rather than the Other Side’s

Advocates are trained to find the best in their own case and the worst in their adversary’s. That skill is important, but if unchecked, it can lead to a distorted understanding of a case’s real strengths and weaknesses. If the story is, “Everything they say is wrong,” then you’re probably missing a few important chapters. Effective advocates don’t just paint their adversary at their worst, but strive to consider what their adversary’s best case is, and why, even if some parts of that story are true, the adversary still loses.

The Consultants Who See What They Expect to See in Research Results 

The point of pretrial research, focus groups and mock trials, is to assess the case and to develop better ways of presenting it. Expectations, however, can be strong. Even before we test it, we think we know from experience what the main strengths and weaknesses are likely to be. When a mock juror gives a different result, it is tempting to treat that individual as an outlier or an aberration. The most important skill a consultant brings, however, is the ability to listen with an open mind and without an agenda. Sometimes the feedback will be idiosyncratic and untrustworthy. But sometimes, the dominant reaction will point to something unexpected, and those moments provide some of the best reasons for testing your case beforehand.

If there is one quality that is key to becoming a sensitive and adaptive communicator, it is the quality of understanding that your perceptions are not reality. Stories are great — or, in any case, inevitable — but be careful that you don’t get lost in your own. 

____________________

Other Posts on Story: 

____________________

Image credit: 123rf.com, used under license

December 7, 2015

Fight for Your Frame

Dr. Ken Broda-Bahm: 

20034496396_debee9cabd_z

Last week saw the killing of 14 and the wounding of an additional 21 in San Bernadino by a County Health Department employee. He apparently left a company training event after  some kind of argument, and later returned with his wife, as well as an arsenal of tactical military equipment. The event was a tragedy for the families, the San Bernadino community, and the nation. The scenario itself was also confusing enough that for the first day or two after the attack, the media struggled to determine which frame it would put it in: Was this a terrorist attack or was it a case of armed workplace violence? As the facts become more clear, it is likely to turn out to be both. But the struggle to determine what box it would be put in at first, provides a very clear example of the notion of a “Frame Game.” A staple of narrative theory, the notion of framing is that the same set of facts can be viewed quite differently depending on how they are presented. Facts are facts, but the “frame” provided by our language and the larger story is what provides the meaning.

Calling persuasion a “Frame Game” is based on the recognition that both sides in a dispute will try to frame the event in a light that suits their interests. In the San Bernadino tragedy, for example, advocates on one side saw the “gun murder” framing as an opportunity to press for greater gun control based on the argument that well-armed attacks have become far too common in the U.S., while advocates on the other side saw the “terrorist attack” framing as a chance to call for greater security measures at home, more bellicose policies abroad, and potentially an end to planned resettlement of Syrian refugees in the U.S.. That battle over the right frame parallels what legal advocates are trying to do in the typical case. While there is a fair amount of discussion on the importance of frames in the study of human communication and persuasion, there is surprisingly less on what exactly creates a frame. So, based on the interests of legal persuaders, the focus of this post is to share my own thoughts on four qualities that make up a frame.

The Four Corners of Your Frame: Character, Keywords, Context, and Theme

An opening statement is not going to determine jurors’ final leaning, but it will establish in a pretty durable way the “This is a story about…” part of the message. In other words, the opening statement sets a frame for the case. So what exactly makes a frame? My own list includes four elements. There are probably more, including some that draw from the fancier neighborhoods of narrative theory, but from a practical perspective, I want to focus on four that should be in the litigator’s tool box. In each, I’ll be drawing from the example of the San Bernadino shooting, and also using an employment law example involving a case that, depending on your frame, is either about an employee fired because he failed at his job, or is about a company punishing a whistle-blower.

Character

All stories have characters: protagonists and antagonists. The same goes for the San Bernadino story. When we’re framing something as another random shooting event, the individual shooter or shooters matter less: Any crazed loner with access to weapons will do. But when framed as terrorism though, the shooters, their motives, and any larger group moves to center stage. In the employment lawsuit example, the main character will differ depending on the frame. The defense will want to put the employee and his failures in the center of the frame, while the plaintiff will want to make the company and its motives into the central character.

Keywords

How you describe the events and the specific language you use forms the frame. As I’ve written recently, specific keywords reinforce different values, with terms working together to create a rhetorical universe. In the case of the events in San Bernadino, is it a “crime” or an “attack”? Are its perpetrators “assailants” or “terrorists”? Among the various ways to frame the employment case, the plaintiff will choose words like “grudge,” “payback,” and “retaliation,” while the defense will favor words like “performance,” “service,” and “customers.”

Context

It is not just the events, but also the canvas that they are placed on. The context emphasizes meaning, playing up some aspects of the situation and playing down others. In interpreting the San Bernadino shootings, the media had the choice to either place the attack in the context of the shootings at a Colorado Springs Planned Parenthood clinic earlier the same week, or to place it in the context of the coordinated terrorist attacks in Paris the previous month. In the employment case, we could see a similar battle for context. The plaintiff will fight for the admissibility of as much information as possible about the company, its motivations, and its patterns involving other employees, while the defense will want to keep that frame of relevance centered on just the employee at issue.  

Theme

The most direct way to suggest a frame to an audience is to explicitly reference the frame they should apply. A theme does that by telling us what the story is about. In legal cases, the theme is a recurring motif that is built during voir dire or opening statement. In the days after San Bernadino, we heard the same themes emerging from a variety of sources, with the message being either that “This is another in America’s unending list of gun attacks…” or “This is America under attack from an outside agent.” The two sides in the employment case might similarly battle over the right message. To the plaintiff, we might have a company who “chose to punish an employee for doing the right thing,” while to the defendant, we would have an employee who “was given chance after chance to improve his performance but who ultimately said ‘no’ to the company’s help.” 

The idea of a frame is just one of the contributions of narrative theory to persuasion, but it is a very important one. “Frame” reminds us that story is more than just sequence.

____________________

Other Posts on Framing: 

____________________

Image Credit: Tobias Van Der Elst, Flickr Creative Commons

July 30, 2015

Tell It: The Top 10 Posts on Story

By Dr. Ken Broda-Bahm: 

35424028_s

The “story model” (Hastie, Penrod & Pennington, 1983) for litigation persuasion is appropriately considered gospel at this point. At the same time, there is an art to it. In most courtrooms, I see litigators who are aware of the need to tell a story, but not necessarily versed in the techniques of storytelling. As I’ve explored from time to time in this blog, beyond laying out the events in temporal sequence, there are some nuances relating to structure, imagery, audience, and point of view. In short, there is a substantial “advanced course” in narrative that effective trial lawyers should study. To make that a little easier, here are our top 10 posts so far on storytelling in trial.  

1. Opening Tailor1.  Your Opening:  Tell It Like a Story, but Tailor It Like a Strategy

It is now a truism that effective opening statements tell a story. Now that it is, once again, Blagojevic trial season in Chicago, prosecutors are telling a story of a desperate politician’s attempt to wring personal fortune out of political opportunity, as the defense waits to tell a competing story of an overzealous prosecutor’s efforts to paint simple ineptitude as high crimes. For litigators, it remains true that the narrative structure is, to borrow and clean up a phrase, “freakin’ golden,” but at the same time, the advice needs to go beyond “tell a story.” It can seem like simple advice. After all, we know stories in our daily lives, and we know that they all have a setting, characters, conflict, sequence, and a lesson at the end. but the simplicity of the advice to frame your case as a narrative can be deceptive

(Read More)

2 Story Structure2.  When You Think “Story” Think “Structure”

I have a five-year-old daughter (stay with me, it’s relevant), and every night, just as she is going to bed, I tell her a story, creating each tale in impromptu fashion. I’ve been doing this for as long as she’s been able to understand what I’m saying (and probably a little longer). We do this after the books are done, so I can’t just rely on published help, and I can’t just tell her any old Grimm or Mother Goose tale either. It has to be original and created just for that night — no repeats. She gives me a character and a setting (e.g., a bear who wants to be president), and I have to just go with it. If that sounds like an exercise from a storytelling workshop, that is pretty much what it is. What enables me to do this night after night is not a wild imagination, nor is it just  

(Read More)

3. Arc Trial Story3.  Arc Your Trial Story

There are strategies and techniques, and then there are fundamental bedrock principles of human communication. The use of story and narrative structure definitely falls in the later category, perhaps to a greater degree than we’ve previously thought. I’ve written before that stories can show us what’s moral, fill gaps in evidence, and add the comfort of a familiar structure. But the appeal of storytelling may be even more primal than that. Based on some new work by Claremont neuroscientist Paul Zak, effectively described in a concise YouTube video, the story — and, more specifically, story structure — plays a direct and measurable chemical role in creating empathy. The research shows that two key 

(Read More)

4. Universal Morality4.  Find the “Universal Morality” in Your Case Story

Most litigators now understand that their case fares better when it is framed as a story.  And everyone knows that a good story always carries a point or a moral.  Even information that follows a narrative structure (e.g., I went to a store, then bought broccoli, then returned home) isn’t received as a “story” unless it carries a fundamental lesson, message, or moral.  That means that morality — not necessarily in a religious or profound sense, but in the practical sense of a preference for the good over the bad — is an element in every case story.  But litigators, even those who take it to heart to tell a story in their case, aren’t always clear on where to find the moral of their story.  We know also that it depends on who you are talking to, 

(Read More

Template5.  Template Your Trial Tale

It’s said that there’s a story hiding in every case. And sometimes, depending on the attorney’s style and habits, that story can be hiding pretty darned well. An emphasis on presenting based on accumulated facts within a topical division of issues — a style taught in law school and prized in briefing — can end up submerging the basic story at the heart of the case. Even when a timeline is used, the key hallmarks of scene, character, and plot that distinguish a simple sequence from a story are often missing. In the continuous stream of facts, dates, documents, and data, the central chunks or chapters of a story can also be buried. Whether the case is complex or simple, all litigators face the challenge of 

(Read More

6. Closure6.  Find Your Closure

What happened to Flight 370? For more than two weeks the world has searched for answers. As of press time for this post, investigators have found debris that they believe marks the end of the flight in the Indian Ocean, but that is just prompting new, possibly unanswerable questions about why the plane veered so far off course. These initial and potentially continuing lack of answers has made the Malaysian flight story a very difficult one for us to handle. We like our stories to be nicely buttoned up as soon as possible. From Aristotle all the way to today’s media, we are used to stories that have completion, resolution, and closure. There is a familiar structurethat moves setting through conflict to resolution. So what  

(Read More

7. eyes7.  Talk to the Eyes: If It Can’t Be Visualized, It’s Not a Story

Stories require more than sequence. They require a sense of place, a tone, and a texture. Even when told without prepared images or video, a good story requires language that helps the mind “see” and not just comprehend the action. There is one study that perfectly captures this point (Tversky & Kahneman, 1983). Participants were asked to rate the likelihood of an occurrence within the next ten years. For one group, that occurrence was a massive flood somewhere in North America in which more than a thousand people drown. For a second group, the occurrence was an earthquake in California causing a flood in which more than a thousand people drown. The second scenario is obviously a subset of the first, so its likelihood is 

(Read More

8. Overlap8.  Overlap Your Stories

Let me start differently in this post, with a ‘Tale of Two Tales.’ Here is tale number one: 

First, From the Plaintiff’s Perspective: It is January, 2010. Brian Starr, a computer storage engineer on contract for GiganTech Industries has come up with a rough design for the UltraDrive, a radical new design for a computer hard drive that will increase storage space and performance while reducing manufacturing costs. Brian is all the more enthusiastic about the idea because his contract with GiganTech grants him a share of royalties from any new product. So he begins work immediately, looking into a path to market. It is March, 2010. Brian and GiganTech are facing the normal amount  

(Read More

9. Casey Anthony9.  Take a Lesson from the Casey AnthonyVerdict: It Is the Story, and Not Just the Evidence

Casey Anthony was sentenced today to four years for lying to authorities with credit for the substantial time she has already served.  Instead of facing life, or possibly death, for the murder of her daughter Caylee, she will be free as of next Sunday (July 17th), though it is hard to use the word “freedom” in connection with the life she has ahead of her.  After three years in the national spotlight, to say this outcome is not popular is the understatement of the year.  Current polling shows that more than 80% of the public disagrees with the verdict.  For this post, I am not writing about whether the jury was wrong or right, and definitely not writing about whether Casey Anthony did it or not.  There is no shortage of that kind of commentary already.  Instead, I want to focus on 

 

10. Pedestal10. Don’t Put “Story” on Too High a Pedestal

Many hold that stories are essential to effective communication, and I am among them.  Especially in litigation, there is a natural role for stories as a glue holding together the facts and the law, the ethics and the evidence, the logic and the persuasion.  I believe that and apply it in my practice every day.  So when I heard about Tyler Cowen’s TED talk encouraging people to distrust and to rely less on stories, I approached it with some suspicion.  When I viewed the remarks on YouTube, it was with an eye toward refuting Dr. Cowen.  As I listened to the economics professor’s remarks, I found myself rejecting some parts of his argument.  Rather than being “a kind of candy,” “a kind of mental laziness,” or “a kind of self-

(Read More

Photo credit: 123rf.com, used under license 

February 2, 2015

Template Your Trial Tale

By Dr. Ken Broda-Bahm: 

19379279_m

It’s said that there’s a story hiding in every case. And sometimes, depending on the attorney’s style and habits, that story can be hiding pretty darned well. An emphasis on presenting based on accumulated facts within a topical division of issues — a style taught in law school and prized in briefing — can end up submerging the basic story at the heart of the case. Even when a timeline is used, the key hallmarks of scene, character, and plot that distinguish a simple sequence from a story are often missing. In the continuous stream of facts, dates, documents, and data, the central chunks or chapters of a story can also be buried. 

Whether the case is complex or simple, all litigators face the challenge of finding and conveying their case story. In encouraging trial lawyers to take that step, I’m inspired by a method shared by my colleague, Dr. Kevin Boully. What he does early on in his work on a case is to use his notes to boil down the central narrative into a very quick three or four sentence story. Supplying my own take on that, I would like to use this post to propose a simple Q & A format — a worksheet of sorts — for lawyers to use in arriving at their own simple story at the core of their case. 

Four Simple Story Prompts: 

Previously, I’ve written about some of the classic story stages — scene, obstacle, and triumph — as well as the need to find a narrative arc within your trial story. In this post, I’m going to take a simpler focus on the most basic story components: the pieces that litigators should be able to identify without too much thought, and pull together to provide a quick thumbnail of the case. It boils down to four questions: 

  • Who? 
  • Did What? 
  • With What Result? 
  • And With What Unmet Need? 

Who?  

The ‘Who?’ or central actor in the story accommodates both a protagonist (a ‘White Hat’) and an antagonist (the ‘Black Hat’). The protagonist in your trial story is most obviously your client, but it also might be more of a condition (like a free market) or even an abstract idea (like personal responsibility). The antagonist is also most obviously the other side, but could also be represented more abstractly as an idea or circumstance, and more personally as one or more individuals within the larger group on the other side. 

Did What? 

The central action of your story might be taken by either the antagonist, the protagonist, or both. This is the step that contains the actions that lie at the heart of the reasons for litigation in the first place, and the main focus for either praise or blame. The “action” in this case can also involve a failure to act, or the choice of one path from among a variety of other paths. 

With What Result? 

Cases are about consequences. In criminal cases, those consequences are measured in victim impact. For civil plaintiffs, the consequences take the form of a tort, a breach, or some other loss. And for civil defendants, the consequences are framed differently: a best effort, a tragic accident, or a costly lesson. 

And With What Unmet Need? 

This part is unique to a litigation scenario, and critical. Trial stories by nature are incomplete and unfinished. The most important part of the story is the ending to be supplied by a jury or judge. For the criminal prosecutor, the unmet need is always “justice,” or the act of setting the scales right again. In a civil context, the unmet need will be more broadly focused on the kin of justice: fairness or equity, or on the need to send a good message, or avoid sending a bad one.  

Three Examples: 

These quick story elements are best understood through examples, so let me share three: 

A Professional Malpractice Defense Story: 

Who? 

Protagonist: An experienced and thorough doctor. 

Antagonist: An illusive and hard-to-diagnose illness. 

Did What? 

The doctor searched for a cause of Ms. Smith’s symptoms based on those that presented and based on the greatest likelihoods. 

With What Result?

He still missed the diagnosis — a diagnosis that would have been missed by most or all careful doctors. 

And With What Unmet Need? 

The need to understand that, based on the complexity of disease and the human body, a perfect diagnosis is still not guaranteed. 

Putting It All Together: An experienced and thorough doctor was faced with an illusive and hard-to-diagnose disease. He searched for a cause based on Ms. Smith’s symptoms that presented and based on the greatest likelihoods. Unfortunately, he still missed a diagnosis that would have been missed by most or all careful doctors. That goes to show that, based on the complexity of disease and the human body, a perfect diagnosis is still not guaranteed. 

A Products Plaintiff Story: 

Who? 

Protagonist: The father (plaintiff) who is a careful driver and careful with his equipment.

Antagonist: An executive (Brown), who led the tire recall: one bad link in an otherwise good company. 

Did What? 

Executive Brown took the easy way on a national recall, sending a few notices instead of notifying all tire sellers and buyers. 

With What Result? 

A tragic and preventable collision.

And With What Unmet Need? 

Companies need to get the message to take every safety recall seriously. 

Putting It All Together: A father, careful with both his car and his driving, experienced a tragic and preventable collision caused by executive Brown’s decision to take the easy route instead of the complete and careful route when recalling the tires. Brown just sent few notices instead of notifying all tire sellers and buyers. Companies need to get the message to take every safety recall seriously. 

A Patent Story: 

Who? 

Protagonist: American ingenuity, as protected by U.S. Patents, and as represented by innovators like ClientCo. 

Antagonist: Copycat companies, like DefenseCo, who try to take the easy way instead of the innovative way. 

Did What? 

DefenseCo tried to adopt ClientCo’s innovative idea instead of coming up with an idea of their own. 

With What Result? 

DefenseCo infringes, which deprives ClientCo of market-share and undermines American ingenuity. 

And With What Unmet Need? 

Juries need to enforce the rules of fair competition in order to protect American innovation. 

Putting It All Together: American ingenuity, as well as companies like ClientCo, are under attack by copycat companies who would rather steal an idea than creatively come up with one. One such company, DefendantCo, took the easy way out by trying to adopt ClientCo’s innovation. But they infringe ClientCo’s patent, and that infringement deprives ClientCo of market share, and also undermines American ingenuity. Fair competition requires that companies follow the rules.  

Note that none of these stories are fleshed out. Instead, these thumbnails just represent the basic architecture at the center. The stories will only be convincing and involving once the details and the evidence are added. But still, thinking about that simple core is an important step toward knowing what moves the story forward and what helps to keep it comprehensible and compelling.

Go ahead, try answering those questions for your own current cases.  

____________________

Other Posts on Story: 

____________________

Photo Credit: 123rf.com, used under license

March 24, 2014

Find Your Closure

By Dr. Ken Broda-Bahm: 

2247520785_be5b87c125

What happened to Flight 370? For more than two weeks the world has searched for answers. As of press time for this post, investigators have found debris that they believe marks the end of the flight in the Indian Ocean, but that is just prompting new, possibly unanswerable questions about why the plane veered so far off course. These initial and potentially continuing lack of answers has made the Malaysian flight story a very difficult one for us to handle. We like our stories to be nicely buttoned up as soon as possible. From Aristotle all the way to today’s media, we are used to stories that have completion, resolution, and closure. There is a familiar structure that moves setting through conflict to resolution. So what happens if we never know exactly what happened? That is a practical question many media organizations have been asking. “What if the Missing Malaysia Plane is Never Found?” the title of a recent Huffington Post piece asked, before the most recent debris was found. “When something like this happens that confounds us, we’re offended by it and we’re scared by it,” the piece quotes Ric Gillespie, a former U.S. aviation accident investigator. “We had the illusion of control and it’s just been shown to us that oh, folks, you know what? A really big airliner can just vanish. And nobody wants to hear that.”

What also has confounded us for the past 15 days, though, is the lack of ending. When families receive bad news about a missing person, it is often said, “At least they know now what happened. At least they have closure.” Withholding that closure prevents us from packaging, naming, and storing the experience. Litigators are also storytellers, and also want their stories to be complete. Still, particularly in law, there are unknowns that might never be resolved. That runs up against a need for closure that I’ve written about before, noting that it is a measurable psychological trait, and also a state that can be influenced by how we tell the story in the first place. This latest example of a possible story without a natural ending prompts for me the questions: “What exactly is closure?” and “How can litigators and other storytellers refashion closure when they’re denied a natural and factual ending point?”

What Is Closure? 

That seems like that ought to be simply answered: Closure is an ending to the story. But when it comes to defining exactly what that means, it is likely that we’ll adopt Potter Stewart’s adage of “I know it when I see it” or, in the case of closure, perhaps “feel it,” noting the subjective sense of finality and completeness that tells us that a story is at an end. A finer point on definition, though, comes from CUNY  professor Noël Carroll, a leader in the philosophy of art and cinema. His 2007 article, “Narrative Closure,” provides one argument for how we can identify the ending point of a story. To Professor Carroll, closure occurs for the reader once the questions proposed by the narrative itself have been answered. That might sound simple, but note that the test isn’t, and can’t be “when all questions are answered,” but is instead “when the questions generated by the story are answered.” Carroll explains (spoiler alert if you’re currently reading Melville’s book):

Two of the presiding macro-questions of Moby Dick are ‘Will Ahab and his crew ever find the white whale?’ and ‘If they do, will they be able to kill it?’ When the Pequod encounters other ships that have knowledge of the whereabouts of the whale, those scenes contribute to keeping the reader bound to the story. When we finally learn the outcome of the deadly confrontation and that all of the crew, save one, of the Pequod have perished, the novel is over. An added chapter about the grand opening of Ishmael’s dry goods store in New London would be inappropriate.

Now, you might think, “Well, that is obvious, of course the story ends when the main questions are answered.” But, when you abstract beyond the tightly-structured novel and apply that idea to the messy world of human affairs, it raises some other questions.  

What Questions Are Naturally Raised by the Narrative? 

Moving from Moby Dick to the mock trial, it is generally the case that mock jurors have all kinds of questions after they’ve heard summary arguments from both sides. From the trial team, it is common for their reactions, to at least some of these questions, to be: “That’s irrelevant,” or “The case isn’t focusing on that,” or “In the real trial, they will never hear an answer to that.” These may all be true circumstances, but that does not stop the jurors from generating questions. In many cases, those questions are going to be off-topic, but they will still be a distraction. When there is a noticeable trend in your mock trial research pointing to something that jurors want to know, then you either have to provide some kind of answer to that question if you can, or refashion your story so that jurors are focused away from that question if you cannot. 

For example, in a products liability case, jurors might naturally wonder if any subsequent measures have been taken to address the chance of injury. In some cases, that can and should be answered with a definitive “Yes” or “No” depending on the case. In other circumstances, though, it will be better to draw juror attention away from the present time frame by putting brackets around what is most relevant. You can’t guarantee that the question won’t come up, but you can minimize its salience by emphasizing a clear ending point on the timeline and the story, and by giving jurors a reason why this is the period of time that matters most. 

What Happens When Questions Cannot Be Answered? 

At times, and potentially still in the case of Flight 370, even the most directly relevant questions that a story proposes may never be answered. In that case, the question is what becomes of the story and the audience for that story. As I’ve written before, a juror’s ability to tolerate incompleteness is a trait that can be measured in something called the “Need for Closure” scale. In addition to potentially using questions like these to identify who would be more or less troubled by the remaining gaps, the research also shows that embracing story structure itself, rather than an issue-by-issue approach, can in effect teach a tolerance for some incompleteness, because we still expect stories to be less complete than arguments. 

In the case of the missing Malaysian airliner and media stories like the Huffington Post piece discussed above, as well as others from CNN and the New York Times, the media adapts by moving away from a question that cannot be answered (yet), “What happened to the plane?” and focusing instead on a question that can be answered, “How will we cope with a lack of knowledge if the plane is never found?” Litigators can do the same. Jurors want to know “What does the missing memo say?” and if that can never be answered, then the skillful litigator will redirect them to the question, “Why would that memo go missing in the first place?” Since the goal is to create closure even in the face of unknowns, then the effective persuader will focus on what we can know, see, and decide, and not on what we cannot. 

Going back to the title, “finding” your closure won’t always mean giving your audience the closure that they expect or even demand. Instead, it can mean creating a closure that provides a finality even in the face of incomplete facts. That finality can often be found in the jurors’ own role. That role might be to balance the scales by finding for a plaintiff or to uphold other principles like evidence and burden of proof by refusing to do so. It can also mean filling in some gaps on their own. By encouraging them to be part of the story and to write its final chapter, you empower the jury to act as their own form of closure. 

____________________

Other Posts on Narrative and Other Forms of Closure: 

____________________

Carroll, N. (2007). Narrative closure. Philosophical Studies135(1), 1-15.  URL: https://pantherfile.uwm.edu/hinchman/www/Carroll-NarrativeClosure.pdf

Photo Credit: Uhuru1701, Flickr Creative Commons

April 11, 2013

Don’t Be Swallowed by Your Analogies

By Dr. Ken Broda-Bahm: 

8287749090_91f2cba2cf_b
Fairy tales may not come true, but they may become the subject of withering cross-examination. In one of many “strange but true” moments during the Phoenix trial of Jodi Arias in the 2008 killing of her boyfriend Travis Alexander, prosecutor Juan Martinez and defense expert Alyce LaViolette sparred for over twenty minutes last Friday on the details of the story of Snow White and the Seven Dwarfs. You see, LaViolette, a psychotherapist was testifying in support of the defense theory that Arias was in an abusive relationship with Alexander and acted in self-defense, and the expert had also presented a 2010 conference paper entitled “Is Snow White a Battered Woman?” The prosecutor chose to aggressively pick apart LaViolette’s use of the tale in order to question the foundation of the expert’s testimony on Arias’ alleged abuse. “What this shows,” Martinez suggested, “is that even if its a myth…all made up…you can still come up with the opinion that the person is a victim of domestic violence.” In other words, if the expert’s assessment is based on lies told by Jodi Arias, then the assessment is just as credible as the fairy tale. 

That is a worthy goal for the prosecutor to pursue, even a brilliant one. But the question is whether it was lost on the jury. In the court of public opinion at least, a court we know can be more superficial and fragmented than the actual jury, the point seems to have been lost. The prosecutor’s approach was called “bizarre,” “surreal,” and “incredibly unclear.” Dr. Drew even broke into the live coverage in order to explain, “You are in fact listening to testimony about Snow White and the Seven Dwarfs.” Some might react to a situation like this by saying “See, this is the problem with analogies!” But really, this is the problem of being swallowed up by the analogy when you forget its representative purpose and let the larger point get lost. Analogies are powerful tools of communication, but they can also be a powerful distraction if you’re not leading with your purpose. This post comments on an abbreviated transcript of the prosecutor’s examination and shares some thoughts on keeping your objective always in mind and in view. 

Based on my read, the prosecutor’s cross-examination of the expert breaks down into a few chapters. These chapters don’t likely apply to all or more analogies, but they could be — dare I say it — analogous to many common analogy challenges. Let’s take a look at the transcript (from Dr. Drew on Call.), noting that a great many “relevance” objections have been left out: 

Chapter One: The Setup

Prosecutor: Well, are you familiar, back in 2010, … putting on a seminar and indicating that Snow White was a battered woman? Do you remember talking about that?

Expert:No, that’s, if you would like show the entire YouTube video, I would be happy for the, anybody to see that, because I’m not talking — the title was “Is Snow White a Battered Woman” because it was catchy.

Prosecutor: So it does say, “Is Snow White a battered woman?” right? That is the title of it, correct?

Expert:It is…

Prosecutor: And one of the things that we know about your presentation, also, is that — and Snow White and the Seven Dwarfs is a fairy tale, right?

Expert: Yes.

Okay, she wrote the paper, the topic is introduced and the foundation is laid. But, considering the audience, this also may have been a great time to introduce the point, or remind listeners of its existence. For example, “I’m interested in how much factual data your method requires before you can identify someone as being a victim of battery. So I want to ask you about a fictional scenario you wrote about…” That at least tells listeners where you’re going and what you’re trying to show. I know some lawyers will respond, “I don’t want to tip-off the witness,” but the smart witness will know where you’re going anyway, and keeping the witness in the dark risks keeping your fact finders in the dark as well. 

Chapter Two: The Parallels

Prosecutor: And in it, we have an individual, that’s the King, right? Who’s married and has a kid and they name her Snow White, right? Yes or no?

Expert: I’m not using the Brothers Grimm version. I’m using the Walt Disney cartoon. I just want to make that clear.

Prosecutor: But it is true that Snow White had a father, right?

Expert: Yes, she did.

Prosecutor: And the father was the King, right?

Expert: Yes.

Prosecutor: And it ends up that Snow White’s mother ends up dying, right?

Expert: Yes.

Prosecutor: And what ends up happening is that he remarries, right?

Expert: Yes.

Prosecutor: And what happens when he remarries is that he has somebody who is less than honorable, if you will or savory with regard to her view of Snow White, correct?

Expert: Yes.

Prosecutor: And so what happens during that situation is that there is a problem, because this woman, the Queen, begins to, if you will, abuse or be less than nice to Snow White, right?

Expert: Yes.

Prosecutor: So what we have, then, is a situation where we have a father who has failed to protect, right? If we’re looking at it from this global perspective, right?

Expert: Yes.

Prosecutor: And so then, if we look at it that way, Snow White is sort of being — and I use the term loosely — abused. Not in the technical sense, but she’s not being treated correctly, right?

Expert: She’s, she’s being abused as a child, right. That’s correct.

And this goes on for awhile. Whether the prosecutor actually needs to unpack the Snow White tale in a controlled yes/no, one-fact-at-a-time manner is debatable, but the reality is that it burns time, appears pedantic, and once again buries the purpose of the questions. It is also interspersed with periods of questioning that then focus on the details of Arias’ story (e.g., she also had a father, wasn’t treated well, left home, etc.). The back and forth is confusing and at times it was difficult to follow whether they were talking about Snow White or Jodi Arias. And the more time it takes to lay out the specific parallels, and the more the most patient judge in the world continues to deny relevance objections, the greater the chance that the jurors in this case could start to feel that their time is being wasted. Lesson: Get to the point faster, focusing only on similarities that matter. 

Chapter Three: The Breakdown

Prosecutor: And she lived in what is, can be best described as less than ideal circumstances, right?

Expert: Correct.

Prosecutor: And the same thing with Snow White, right? She lived in a situation that was less than ideal circumstances, right?

Expert: She lived with the Seven Dwarfs and according to the Disney version she was pretty happy.

Prosecutor: She lived in a shack, right?

Expert: I thought it was a cute little cottage, Mr. Martinez.

Prosecutor: But there’s seven dwarfs that she’s living with. No one of her own age is there, right?

Expert: I don’t know the age of the dwarfs. I’m sorry, but I don’t.

Prosecutor: Is it your opinion that there were other little kids that would play on the playground with her when she was living with the seven dwarfs?…

Expert: Near the cottage, no.

Prosecutor: In fact, she was just there cooking and cleaning, right?

Expert: Well, she was talking to the birds and singing with the animals.

Prosecutor: And cooking and cleaning for the dwarfs, right?

Expert: Correct.

The two seem to have viewed starkly different Disney stories in their heads, and different perceptions of whether Snow White was a happy guest of the dwarfs or a miserable servant. Not every analogy is going to have a breakdown phase, though this one certainly did, as this was the exchange that attracted all of the media attention. Only a small handful of the media stories that I found seemed to have noted Mr. Martinez’ overall point that if she can diagnose of fiction, then it shows how subjective and ungrounded her method can be. If jurors get that, they may get that the expert’s diagnosis of Arias doesn’t counter the possibility that the facts it is based on may all be fiction as well. For every media story that got that, I found at least ten that didn’t and merely noted the exchange as merely one puzzling moment in a public trial that brings new surprises every day. The exchange aptly illustrates the dangers that some lawyers justifiably see in using stories instead of evidence or analogies instead of facts. Those concerns are well placed. 

 But You Should Use Analogies Anyway

Longtime readers of this blog will know that I’m a fan of the analogy, seeing it not just as rhetorical technique, but as a mode of understanding that plays a critical role in cognition. We understand the new in terms of the familiar, and that makes the analogic thought a critical stepping stone to all forms of learning. At a big picture level, you only need to consider an example like Orwell’s Animal Farm to understand analogy’s role in not just decorating your argument, but in making a point that could not otherwise be made (see Thagard, 2010). But “important” doesn’t mean “easy.” 

In the Arias examination, you might say that the expert risked having her larger point about diagnostics overshadowed by a catchy title, and the prosecutor risked losing his central point in fairytale minutia. The best advice for legal advocates is to keep the point at the forefront and to not be overwhelmed by details, dwarfs, and poison apples of your specific scenario. 

_____________________

Other Posts on Analogy and Metaphor:

____________________

Photo Credit: Loco Steve, Flickr Creative Commons (Photo of window display, Harrods Department Store, Central London)

February 21, 2013

When You Think “Story” Think “Structure”

By Dr. Ken Broda-Bahm: 

6525737475_0194dda6ed_b
I have a five-year-old daughter (stay with me, it’s relevant), and every night, just as she is going to bed, I tell her a story, creating each tale in impromptu fashion. I’ve been doing this for as long as she’s been able to understand what I’m saying (and probably a little longer). We do this after the books are done, so I can’t just rely on published help, and I can’t just tell her any old Grimm or Mother Goose tale either. It has to be original and created just for that night — no repeats. She gives me a character and a setting (e.g., a bear who wants to be president), and I have to just go with it. If that sounds like an exercise from a storytelling workshop, that is pretty much what it is. What enables me to do this night after night is not a wild imagination, nor is it just the inspiration provided by my (extraordinarily cute and creative) kid. What gets me through is a reliance on a bit of knowledge about narrative structure. That is, I draw from a well-established yet simple series of steps that a story needs to go through in order to be understood and appreciated as a story. 

First, I need to set a scene and flesh out some characters (so, we meet the bear who aspires to the oval office, and I resist the urge to name him “Romney the Bear”). Then, I need to introduce a conflict or a problem (Let’s say the bear has great ideas for the country, but keeps scaring off the moderator and audience when he shows up for the candidate’s debate). Then, I need the final step to send the child off to dreamland: a crisis and resolution that brings the story to a close (Hmm, the debate is invaded by a swarm of angry bees, and bear saves the day by scaring them away — everyone takes a fresh look at what the bear can offer). Okay, so I won’t be winning a Newberry medal for children’s literature, but it does work, and works for a reason that should matter to litigators. Keeping an an eye toward the basic structural elements of a narrative is critical to telling the kind of stories jurors will want to hear and retain. Most litigators understand that they need to tell a story, but for too many, the knowledge stops there. They’ll arrange the events in a sequence, but omit some of the parts (chapters; beginning, middle, and end; conflict and resolution) that help us see it as a story. This post takes a look at the ways a little knowledge about narrative structure can help attorneys tell better and more involving stories. 

The Scene: A Need to Both Involve and Influence in Court

While the rational legal model would say that jurors and other fact finders don’t need a story about the facts, they just need the facts. The problem with that is the facts don’t motivate and engage, the facts don’t create a framework of their own, and the facts don’t organize themselves in a memorable or influential fashion. In short, as Eric Oliver (2006) has noted, the facts can’t speak for themselves. An adversary system expects that the advocates on both sides won’t just present, they’ll persuade. And a first step to persuasion is getting an audience to follow your view of what happened and what should happen. Even mathematics is more understandable as “story problems” framed in the narrative mode that tracks with our most basic way of understanding the world. Thanks to some research (e.g., Spiecker & Worthington, 2003) and a lot of CLE’s, most lawyers now understand that they need to tell a story, and I’d wager the vast majority of trial lawyers believe that they are telling a story in opening and through testimony. But there’s often a problem with that. 

The Obstacle: A Nominal Allegiance to Narrative

Lawyers get it, but not always in a deep way. That is, once immersed in the facts and the super-structure of claims and defenses, the litigator may fail to appreciate that a story is more than just sequence. It is possible to present one’s case by taking the facts and arranging them chronologically, walking through the timeline, sharing a series of events with “and then” inserted in between. That can convey the feeling of moving forward through time in a story-like manner, but without the recognizable signposts of a narrative, it really isn’t a story and doesn’t function as one. Think about simply narrating your most recent trip to the grocery story (you parked, got a cart, got tomatoes, then bread, then coffee…then paid and left). Yes, it is a chronology, but there is no situation, no conflict, no resolution. Just sequence without story. The same can occur in trial, particularly in complex or commercial litigation where we don’t have the clear story elements that stand out in a personal injury case, for example. The result that we see is that, in many cases, lawyers believe they’re telling stories, but jurors aren’t hearing them as such. In mock trials, for example, the jurors we watch in deliberations are often creating the stories on their own instead of reacting to those presented by attorneys. But that isn’t inevitable. There is a way for attorneys to exercise greater control over the stories jurors end up with. 

The Triumph: A Deeper Appreciation of Narrative Structure

If you can’t identify discrete chapters, then you probably aren’t telling a story. At the simplest level, a story is as Aristotle said, “a whole” that “has a beginning and middle and end” (Poetics). Aristotle called these the protasis (the introduction or first act that sets the scene), the epitasis (the main action building to a climax), and catastrophe (the final resolution, where everything is unraveled or put back together again – depending on whether it’s a comedy or a tragedy). You’ll recognize this as the structure of my headings above. While it is the simplest way to tell a recognizable story (and it works great for five-year-olds), it isn’t the only way.

There are about as many models for narrative structure as there are literary theorists, which is to say, a lot. Even sticking with the ancients, we could add a section called the chorus to each of those three steps. The Greeks used that to provide the voice of a third party onlooker to describe the proper response to these events, whether to be happy or sad for example. It is easy to see a role for that in the trial story, as an expert witness or those who work or live with a plaintiff provide that third party reaction. This chorus role reminds us that what makes a story is not just what happened, but how we should feel about what happened. For those who want to go further, there is also the notion of the dénouement, coming at the end or just after the climax, providing a return to normalcy or, appropriate to the legal setting, a righting of the scales of justice. If the central events leading to the lawsuit provide the story’s climax, then perhaps the verdict is the dénouement. This also provides the central insight that jurors should have a positive role in the story: They aren’t just onlookers, they’re there to create justice or prevent its miscarriage, whether for plaintiffs or defendants. 

Of course, that just scratches the surface of the need for narrative structure. I’ve also written that structure can be nonlinear — you can begin at the end of the story, or at some other key point. Perspective, or the question of who is telling the story, also matters and you can overlap multiple stories as a guard against hindsight, for example. But beyond all of these strategic considerations, the heart of the advice is this: Make sure your sequence is recognizable as a story, because those story elements provide touchstones that anyone can recognize, even my five-year-old daughter. If I just relied on a description of the bear, or if I just narrated a normal day in the woods, or if I just shared reason upon reason why this bear should be president — in short, if I just conveyed information without a clear beginning, middle, and end — the reaction would be predictable: “Daddy, that isn’t a story.”     

____________________ SCN_0003

Other Posts on Legal Storytelling: 

____________________

Photo credits: tedeytan, Flickr Creative Commons (lead picture), Kerry Langel, MJ Expressions Photography (closing picture)

January 14, 2013

Overlap Your Stories

By Dr. Ken Broda-Bahm: 

Photo
Let me start differently in this post, with a ‘Tale of Two Tales.’ Here is tale number one: 

First, From the Plaintiff’s Perspective: 

It is January, 2010. Brian Starr, a computer storage engineer on contract for GiganTech Industries has come up with a rough design for the UltraDrive, a radical new design for a computer hard drive that will increase storage space and performance while reducing manufacturing costs. Brian is all the more enthusiastic about the idea because his contract with GiganTech grants him a share of royalties from any new product. So he begins work immediately, looking into a path to market. 

It is March, 2010. Brian and GiganTech are facing the normal amount of problems in fleshing out a new product. There are many issues to troubleshoot, but they all seem resolvable and it will be worth it in the end. 

It is June, 2010. Brian realizes that GiganTech has lost patience with the UltraDrive. He thinks they must have had unrealistic expectations for a quick path to market, because they’re cutting their losses and moving on. Brian Starr’s contract isn’t renewed, and after being told that GiganTech has no plans to ever get UltraDrive to market, he signs a standard form agreeing that he has been paid all he is owed by GiganTech and releasing all future claims against the company. 

It is October, 2010. Brian Starr is shocked when GiganTech comes out with a product nearly identical to the UltraDrive and immediately seizes a large share of the market. Brian calculates that, but for the release he signed, his share of royalties would top $3.5 million. 

So far, it is a story of dashed expectations and perhaps too much trust. But let’s take another look. 

Now, Going Back to Add What the Plaintiff Didn’t Know

It is January, 2010. GiganTech executives are pleased with Starr’s new idea. To hedge their bets, they immediately send the sketches and the specs to one of their subcontractors, Far East Innovations, asking if the idea is feasible or not. They don’t tell Starr about this. 

It is March, 2010. Starr is running into trouble designing a manufacturing line. Far East Innovations, however, says that not only is the idea feasible, but they can make it themselves using their existing lines. While a few technical fixes are necessary, Far East is confident they can address them quickly. 

It is June, 2010. After thinking it over, GiganTech executives decide to pull the plug on Starr and go with Far East Innovations. Hoping for a big market surprise, they keep everyone in the dark including Starr. The head office decides to end the relationship with Starr and get a release from him so there will be “no strings attached” to the new product. They tell him that GiganTech has no plans to manufacture the product, which is true, but it leaves out the part about Far East’s manufacturing lines. 

It is October, 2010. GiganTech launches a product that is a combination of Starr’s idea and Far East’s manufacturing. The company sees record profits. Brian Starr gets nothing. 

Now, that is a different kind of story. Instead of too much trust on Starr’s part, we’re talking about fraudulent concealment on GiganTech’s part. Litigators face strategic choices in mapping out their trial stories. One way would be to just walk through the narrative once, sharing everything that happened when it happened. Another way is to tell it twice, as I do above, focusing first only on what the plaintiff knew at the time, and then coming back to fill in what the plaintiff didn’t know at the time and only learned through subsequent events and through discovery. That latter approach of overlapping two stories can have some advantages. 

Why Overlap the Stories? 

Take the example above. From the plaintiff’s perspective, the central challenge is to address the question, “Why would you sign a release?” That is much more understandable if we’re able to consider it first while standing in the Plaintiff’s shoes, knowing only what he knew at the time. From his perspective, in the summer of 2010, there would be no reason to assert a right to royalties on a project that he had every reason at the time to believe was being shelved.

Beyond this example, there are several situations in trial where advocates will have an interest in reducing the knowledge, power, and responsibility of their own clients. Obviously, jurors will need to understand the whole story in those cases, but if they’re first able to appreciate the story through your client’s eyes, and not from an unrealistic omniscient standpoint, the fact finders are more likely to avoid hindsight and “you should’ve known better” thinking. In those settings, there are a few rules of thumb in telling the story. 

 1. Avoid the Omniscient Narrator. When you read novels, you know that sometimes you have a narrator who has a ‘God’s eye view’ of everything going on, as captured in a phrase like, “little did he know that the person next to him was a spy!” In other cases, the narrator is a character in the story, bound by the limits of his or her own perspective. We know that when it comes to demonstrative exhibits, the overarching point of view in the omniscient perspective can lead to feelings of greater responsibility, and at times, an unrealistic perception of what one should have known. The same applies to storytelling. 

2. Tell the Naive Story First. If the goal is for fact finders to identify with your ‘character’ in the story, then consider establishing that connection by putting your jury in the shoes and behind the eyes of that individual, at least initially. It also helps to add details that will help listeners see the story as you tell it, and that means fleshing it out more fully than I have in the brief examples above. Once you tell the simple and perspective-bound story, then the punch comes from moving to an omniscient mode and letting listeners in on what that party didn’t know at the time and only came to appreciate later.

3. Separate the Stories on the Timeline. In telling two different stories, your timeline can often help. Instead of just meshing all of the entries together on one line, regardless of who knew what at the time, you can use the horizontal axis to separate those events. Using the example below, you could first tell the story using the green entries above the line (‘the world as Starr knew it’), then you could go back and add the red entries (‘what Starr didn’t know’) in order to complete the picture. 

Slide1
____________________

Other Posts on Story: 

____________________

Photo Credit: K. Broda-Bahm

June 19, 2012

Talk to the Eyes: If It Can’t Be Visualized, It’s Not a Story

By Dr. Ken Broda-Bahm:

3291832840_3bc8a58afb_b
Stories require more than sequence. They require a sense of place, a tone, and a texture. Even when told without prepared images or video, a good story requires language that helps the mind “see” and not just comprehend the action. There is one study that perfectly captures this point (Tversky & Kahneman, 1983). Participants were asked to rate the likelihood of an occurrence within the next ten years. For one group, that occurrence was a massive flood somewhere in North America in which more than a thousand people drown. For a second group, the occurrence was an earthquake in California causing a flood in which more than a thousand people drown. The second scenario is obviously a subset of the first, so its likelihood is logically smaller. Yet study participants rated the second option as 50 percent more likely. Why would adding details to the scenario increase rather than decrease its perceived likelihood? Because it makes it more of a story. Instead of just a category of an event (a flood), we have a place and a cause (California and an earthquake). Just identifying those features makes the event more probable in the mind’s eye.   Continue reading

Related Posts Plugin for WordPress, Blogger...