What Is Legal Storytelling?
Using Drama, Plot, and Character to Win Cases and Satisfy Clients
Think fairy tales, romance, mystery, legend and the like have no place in the law? Ever hear of the bushy-haired intruder? Ever referred to someone as a cowboy or a lone wolf or a diva or a wicked witch? Do you speak in terms of good guys and bad guys? Ever perfected a pitch by practicing your cadence, repeating certain details, highlighting certain accomplishments? Then, like it or not, aware of it or not, you have participated in a bit of legal storytelling.
And that would be a good thing, according to law professors and legal professionals who are advocates of storytelling as a means to learn the law and to become a better lawyer. Storytelling may seem an odd word choice for a profession focusing on activities like drafting a contract, proposing a regulation, writing a will, researching case law, crafting a legislative provision, or writing up a brief. It is a challenge to define legal storytelling and even accept the use of storytelling instead of a more academically impressive verb. But instructors are using and teaching storytelling to a generation of future lawyers in classes far more rigorous, enlightening, and impactful than the pass-fail legal research and writing courses some of us once took.
How Does Legal Storytelling Work?
We may think of ourselves as legal scholars, as professionals, as persons having a gravitas of sorts. So it may come as a surprise to realize that what we have been doing all along is learning about legal stories, constructing legal stories, and then telling them. In learning about the law, we condense precedent to pertinent details. For example, talking about the plastic surgeon who botched the surgery on the patient who just wanted a Hedy Lamarr nose, or political shenanigans involving the failure of President Thomas Jefferson’s administration to make good on certain judicial appointments approved, by his predecessor.
We are telling ourselves stories about what happened to help us understand the outcome of court decisions. When we refer back to precedent but distinguish elements of a matter before us, we are looking at all of the details in one older story and comparing them to our current one. We are using a story to understand the law. We use stories to help us remember the law or the facts in a matter; we use stories to foster understanding of complicated subjects like science or patent infringements; we use stories to teach clients who need to be educated and to persuade judges and jurors who need to be persuaded.
When Did It Begin?
In an era when law schools emphasize skill-based learning and seek to churn out practice-ready graduates, looking to elements of a story to make the law more understandable and help students develop better communication and analytical skills makes a lot of sense. The notion of legal storytelling got something of a kickstart around 2007 when an Applied Legal Storytelling conference took place at City Law School in London.
Just as storytelling has come into a bit of prominence, so, too, are legal research and writing programs gaining more pedagogical chops. Many are no longer taught by law school fellows but are run by professional instructors, if not necessarily tenure-track professors. Learning to ‘think like a lawyer’ has taken a backseat to learning the skills to actually be one. Big law firms and their clients have begun to resist what was essentially a very high-paid apprenticeship for newbies fresh out of law school. Legal research and writing programs have gained a lot more traction. Staffed, as they now are, with professionals who actually know how to research and write well, that this whole notion of legal storytelling is a viable means to developing a meaningful law practice makes a whole lot of sense.
Some might argue that legal storytelling has pretty much always been around — in that identifying pertinent facts, figuring out what the pertinent rule is, and then applying that rule or distinguishing it to arrive at a conclusion is really a matter of telling the story of a particular matter. Identifying relevant characters and pertinent elements of the plot and then reaching an ending is really traversing the arc of a story.
In the same vein, a lawyer who is simply drafting a will, while likely to rely on a fair amount of boilerplate, will need to ask the client what her story is, whether she has children, whether she anticipates dying soon, whether she is providing for a current spouse or other significant personages, whether she owns property jointly with someone, whether she wants to set up a trust or let her offspring inherit a lump sum. In gathering all of these bits of information, the lawyer will be learning the client’s story, a bit about how she got to where she is, and a bit about where she expects to go.
What Is Effective Legal Storytelling?
Lawyers also use stories to teach — not necessarily stories they have crafted, but stories constructed by others that are similar to circumstances in which the current lawyer is involved. They might not be novels, but could be real-life dramas or films. Have you ever mentioned Erin Brockovich to a client or talked about the little guy taking on a giant or referenced the John Travolta film called A Civil Action? You are using others’ stories to help someone understand a current case, the current law.
Lawyers, of course, also use stories to persuade — clients to sign on, opponents to settle, judges and jurors to vote in their favor. If pitching a prospective client, you might be thinking in terms of an ‘elevator speech’ — what you can say quickly to grab attention, to inspire confidence in you, to impress, to get someone to buy your services.
Are you going to mention that the law school you attended was your third choice and that it took you two tries and a trip to Pennsylvania to pass the bar exam and then you had to waive into your jurisdiction’s bar? Of course not! You will craft a pitch — or, more aptly, put together a story — after sifting certain facts. You will not be listing events in your life year by year; you will be condensing some highlights, and ordering those facts, and possibly emphasizing a theme — that justice must be done, that the client must be made whole, that the client must be protected.
The very persona that you embrace when you are, shall we say, working it may be something of a character in a story: the disheveled but brilliant litigator, the bow-tie-wearing champion of righteous causes, the mingling-with-the-stars-because-she-is-a-star high-end divorce attorney, the earnest but youthful and attractively-priced generalist. In getting business, you will be inserting that character into a tale that’s your own.
What Makes a Good Legal Story?
Of course, a story is not merely made up of character, or even of a recitation of facts. Telling a story requires more than just putting one fact in front of another. There needs to be a bit of a storyline. Do you begin with ‘it was a dark and stormy night’? Are you doing what journalists call a tick-tock story, one that is, essentially, a chronology? Which facts are you incorporating into your piece, and which details are you dismissing as not relevant and not sufficiently colorful to move the narrative forward? Will you be using a bit of foreshadowing? Will you be trying to make your characters sympathetic? What is the action? Is it a car accident or the long, painful recovery afterward? Does your story start with a shocking crime and then retreat in time and build up to the ultimate betrayal?
Who Is the Audience?
How you structure your story, and the elements you include, and the techniques you employ to engage your audience depends on who that audience is. Should you be seeking to persuade only a judge to rule in your favor, you might tell the story in a different way than you would if you were seeking to win over a jury. How your story will be presented will also matter: Will it be buried in a complaint or an appellate brief after a whole lot of procedural stuff? How will you make your story stand out, catch the eye of the reader, engage that reader, interest that reader, and begin to lead that reader down a path toward empathy for your client? Will you be telling this story in the context of a negotiation, where others may be sharing different variations of this story?
Listen to Stories
Lawyers are also called upon to listen to stories and, indeed, they might learn quite a bit if they asked more people about their stories. Firm colleagues, particularly more junior ones, might be helped along immensely if a lawyer takes the time to ask about, say, an associate’s story about life at their law firm so far. So, for instance, a lateral who just transferred from a government position might enjoy the new work environment but lament the loss of satisfaction in working for those wearing the ‘white hats.’ A seasoned partner listening to this might, instead of just assuming that anyone working in private practice has to be satisfied since, chances are, they’re making more money than they used to be, talk to that lateral associate about realizing how no entity is the good guy all the time; various organizations have different strengths and weaknesses, but all of them still deserve to be protected.
Ask for the Story
A partner incensed that an associate has not completed a brief might, instead of blustering about the work not being done by an internal deadline, instead stop to ask, “What went wrong? How did we get to this point?” — and thus might learn that several partners are throwing work this associate’s way, or that the associate’s expertise in a certain area of the law is not well-developed to the point where legal research took far longer than you expected it would. Or, later on, the partner might seek to learn about the associate’s experience in completing the assignments, about what the high points of the activity were, and what the low points were. Similarly, a lawyer might tease out a client’s experience with the firm after a matter has concluded.
There are a lot of stories out there; they just need to be uncovered. Of course, in telling any story, a lawyer needs to abide by the rules of professional conduct.