Every successful case starts with an act of imagination

A few days ago I found this article, written by professor Steven Lubet at the Northwestern
University School of Law, titled “Trial Theory and Blind Poetics.”  I’ve read it and re-read it, and I recommend it.  It’s relatively short, eight pages, but it packs a wealth of insight into a small package.

The article encapsulates some of what I see as the most important tools in effective advocacy, and I see Lubet’s ideas as a jumping off point, the beginning of a conversation and an invitation to experiment, rather than an author stating conclusions.

Lubet begins by talking about the importance of developing a compelling story, a story that is holistic and not incremental, a story that will be developed over time as new facts are learned – “every successful case starts with an act of imagination.”

He points out that the components of a successful story are that it must be factual and logical, and it must be visual – it must allow the jury to see the facts and the events as they happened.  It must have a powerful moral claim – the decision makers must know that they are doing the right thing at the end of the day.  I would add that it must have an emotional component as well – ultimately people (jurors) do not make decisions based on logic; rather they make decisions based on emotion, and then they use logic to justify the decisions that they have made.  Few mediums are more effective for evoking emotion than effective storytelling.

People are captivated by story – it has been this way since the dawn of time in every culture around the world.  Explanations can be persuasive, but effective storytelling allows a jury to experience a thing, to visualize it, see it and relate to it.  It is easy for an opening statement or a closing argument to devolve into an explanation or even a rant, but when the storyteller gets lost in the details, the audience is lost.  Explanations do not hold an audience’s attention, and you want the jury to be thinking, “tell me more.”

Gerry Spence says that the first thing he did when he took on a new case was to write his opening statement – what he meant by that is the first thing he did was to write his client’s story, which then evolves over the course of the case as new information is gained and as different ways of presenting the information is tested.

Lubet in his article says that the story must be imagined as a whole concept, rather than as the combination of distinct parts.  That may be true, but there are often other stories that must be developed before the trial begins – for example, each potential witness in a case has their own story that must be explored, in an attempt to understand that witness and their motivations.  That witness’ story has to be developed and can be told as well – the witness’ story as it impacts our client’s story, and as a part of our client’s story.

One important aspect of trial preparation in our office that is not mentioned by Lubet is the use of psychodrama to discover the story.  Re-enacting key events in the client’s life and key scenes from the case allows us to learn new facts that would not have come out through simple interviews, and new ways to present those facts.  It helps us to find those facts or events that resonate, it helps to find the truth and clarity when the facts otherwise seem confused, and it helps in discovering ways to help the jury visualize what happened in a case – showing them rather than telling them.

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .

 

One Response to “Every successful case starts with an act of imagination

  • We wholeheartedly agree. Storytelling is a powerful tool that has been used very successfully in trial preparation for decades. Training for Az Lawyers is available through Arizona Psychodrama Institute. Help your clients put their stories across in a way that the jury can fully appreciate.

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