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The Storytelling Lawyer

Distinguished Practitioner in Residence, Seattle University Law School

Successful pretrial litigators and trial lawyers are skillful storytellers. It’s been said that in trial the best story wins. The better maxim is: The best story told well wins. Even the best story is worthless when told poorly. Whether counsel is addressing a mediator or a jury, the story of the case is critical because if it is properly constructed and delivered, it will drive the listener to lawyer’s desired outcome. This discussion explores how to effectively construct and tell the story of the case. Portions of the prosecutor’s opening statement in the manslaughter trial of Dr. Conrad Murray for the death of Michael Jackson are used to illustrate points.


Dr. Conrad Murray Trial – opening statement by the prosecution including a preamble by the judge.

THEME OF THE STORY

A first-rate theme encapsulates the essence of the story in a way that convinces the jurors and is memorable. Like an advertising slogan the theme catches attention and holds it. The theme can be a word, a phrase, an analogy, or another device that vividly describes the case. It should express values that the jurors share.

In the trial of Conrad Murray, lead prosecutor David Walgren introduced the prosecution’s theme at the outset of his opening statement in this way:

“Ladies and gentlemen. The evidence will show that Michael Jackson literally put his life in the hands of Conrad Murray. The evidence in this case will show that Michael Jackson trusted his life to the medical skills of Conrad Murray. The evidence will further show unequivocally that that misplaced trust had a far too high a price to pay. That misplaced trust in the hands of Conrad Murray cost Michael Jackson his life.”

The betrayal-of-trust theme is a common one for prosecutors in child abuse cases that involve an authority figure who has taken advantage of a child. But, this theme also fit the Conrad Murray story like a glove. It was a theme jurors in the Conrad Murray trial could relate to, and it captured the fundamental nature of what happened.

HUMAN STORY

To tell a story that jurors will care about, the lawyer wants to tell a story about a real human being. The story should contain as much human background information as evidence law allows. Walgren wasted no time in getting to that part of the story. After announcing the theme, he said:

“On June 25th 2009 Michael Jackson was pronounced dead. May I ask the court to dim the lights, Your Honor . . . Thank you. He was just 50 years old.” (slide shows Michael Jackson lying on a gurney with a tube coming out of his mouth and these words over the photograph “On June 25, 2009, Michael Joseph Jackson was pronounced dead. He was 50 years old.”) “He died alone in his bed on the second floor of his Holmby Hills mansion. In the house at the time were the defendant Conrad Murray and Michael’s three young children and some staff that help around the home.”

There you have a human story in one short paragraph. Jackson died alone in his own bed. A father of three young boys. Relatively young at 50 years of age. The opening statement would later go into much more of Jackson’s life.

MIND’S EYE

To make sure that the story plays like a video in the mind’s eyes of the jurors, the storytelling lawyer paints with word pictures, shows visuals, shifts tenses, tells it from a point of view, uses plain English, and picks persuasive language. Later in Prosecutor Walgren’s opening, he enabled the jurors to see the story unfold when he described what Alberto Alverez, a person who resided on Jackson’s property, found when he entered Jackson’s Holmby mansion on June 25, 2009:

“Alberto Alverez goes into the house and eventually goes up stairs. Goes up these stairs shown in this picture” (picture of stairway is shown on screen in the courtroom) “and proceeds into the bedroom where he sees what appears to him to be Michael Jackson’s lifeless body on the bed. Conrad Murray is giving him CPR with one hand while Michael lay on the bed. Alberto Alverez observes a condom catheter. He didn’t know it was called a ‘condom catheter,’ but he observes some device and tubing coming from the penis of Michael Jackson. What the medical experts will tell you is that this is a device to collect urine when you are knocked unconscious for surgical procedures. This is what he sees on the body of Michael Jackson when he comes in the room.”

Let’s dissect this portion of the opening and look at its parts to see how Walgren brought this short story to life in the courtroom.

Tell the Story with Visuals

What better way to imprint the vision of the story on the jurors’ minds than with visuals? Studies show that we retain less than 15 percent of what we hear, but we remember over 80 percent of what we see and hear. Consequently, the story accompanied by visuals is much likelier to be remembered than without them. Note that when the prosecutor first discussed Michael Jackson’s death, he had a slide projected on the screen behind him showing Michael Jackson lying on a gurney with a tube coming out of his mouth. Later, when Walgren told the story of Alverez’s discovery, a computer slideshow accompanied his narrative.

Point of View and Word Pictures

This segment of the opening is told through Alverez’s eyes. The narrative contains a series of word pictures as Alverez moves about the house: the stairway; the bedroom; Michael Jackson’s body; Conrad over Jackson performing CPR with one hand; the condom catheter. To give the jurors the feeling of being witnesses through Alverez’s eyes, Walgren relies on the storyteller’s tense-shifting device; he shifts from past to present tense. It isn’t what Alverez “saw;” rather it is what Alverez “sees.”

Plain English

Speaking like a lawyer is poor storytelling. A persuasive lawyer speaks in plain English whether the lawyer is addressing a client, mediator, jury, or judge. Unlearning what law school may have taught about how to speak like a lawyer is the goal for the storytelling lawyer. Drop legalese, which only clouds matters. Who in the real world uses words and phrases like “wherefore,” “comes now,” and “heretofore?” Only in law school would a person be shot and “subsequently die” (when other than afterwards would he die?) or would a “plaintiff decedent walk into the room” (deadman walking?). Walgren’s opening is devoid of legalese and is easily understandable.

APPEARANCE AND DELIVERY

Project Sincerity

Traits that above all else make a lawyer a great storyteller are a sincere belief in the case and an ability to project that sincerity. When jurors watch and listen to the sincere lawyer deliver the story of the case, they know the lawyer believes in it and what the lawyer is doing. That lawyer is a seeker of truth whom they can trust. The lawyer is the case.

To project sincerity, you must be sincere and believe in your case and what you are doing. If you do not believe, your body and your voice will betray you no matter how you try to mask them. While, under Rule of Professional Conduct 3.4, trial counsel may never express personal opinions about the credibility of witnesses or about the justness of a cause, no rule exists or ever would be fashioned to prohibit counsel from projecting sincerity to a judge or jury.

Watch Walgren in Part 1 and Part 2 as he delivers opening statement. He exudes sincerity and confidence in his case.

Appearance

Amazingly, 60 to 80 percent of communication is nonverbal in nature. Allan & Barbara Pease, The Definitive Book of Body Language 10 (Bantam 2004). The lawyer is the means by which the story is conveyed to the audience. How a lawyer dresses, stands, gestures, and so on can favorably influence the audience or achieve the opposite.

How should counsel dress for court? Generally, it should be a neat and professional appearance, one that does not include distracting clothes or accessories. Walgren wears the traditional trial uniform: a dark suit; white shirt, and tame tie.

Eye Contact

A fundamental tenet of communication is to make eye contact, because through eye contact the listener makes a connection with the speaker. The lawyer’s goal should be to make eye contact with each listener. A major obstacle to achieving eye contact is the lawyer’s notes. Notes are like a magnet, attracting your eyes to the page to the exclusion of everything else. The more detailed the notes, the greater the attraction. Note that Walgren delivers the story of the case mostly without notes. This is an achievable goal because by the time counsel goes to trial, counsel will have mastered the facts of the case.

BECOMING A STORYTELLING LAWYER

To become a successful advocate requires thorough preparation of the case’s story and adherence to these principles of effective storytelling. It also requires practice that can be acquired through law school pretrial and trial advocacy courses and through experience, hopefully at first in the role of second chair to a veteran trial lawyer.

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