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& Case-making

We tell stories because that is the way people connect with one another. Learn how to tell more purposeful stories. We make cases — advocate for ideas — in order to promote positive understanding and change. Learn the skills of thoroughly and clearly presenting FACTS (relevant stories in a work context), raising ISSUES AND QUESTIONS, ANALYZING those issues and questions in an INFORMED AND EDUCATED manner using CRITICAL THINKING and APPLYING HIGHER LEVEL THOUGHT demonstrating one’s knowledge and expertise in order to MAKE CREATIVE RECOMMENDATIONS AND DECISIONS in professional contexts.

"Storytelling and Case-Making" Training and Coaching are applications of the Ethical Presence TM process.


Sample writing on "Storytelling and Case-Making" with Ethical Presence:

The practice of trial law is an art.

Trial lawyers are storytellers. Trials are competitions between at least two stories. The stories of a trial have strict technical and legal limitations imposed upon the manner in which they are told, of course, including adherence to the rules of evidence and procedure, the necessity to address the elements of the applicable substantive law, and the requirements of the mechanics of the lawyer’s many tasks at trial such as delivering opening statements and closing arguments, eliciting witness testimony and introducing other evidence. A trial lawyer must pay great attention to these demanding limitations without forgetting that her fundamental task is to tell her client’s story. She must nimbly deal with the law’s requirements while at the same time connecting with the other people in the courtroom on a human level with wisdom and sensitivity.

A trial lawyer is engaged in the same basic art, storytelling, as a novelist, a screenwriter, a playwright, an actor (improvisational or otherwise), a comedian, a theater or film director, a journalist, or a grandparent passing down family lore to a child. From the beginning, human beings have always told stories, particularly when they wanted to understand, clarify or heal. At the first trial two people involved in a factual dispute told their respective stories to a third party in the hope of finding a resolution. The law evolved from that simple and primitive starting point, as has the art of the trial. This course book and its complementary class consider some of the skills needed to create trial art.

The world often does not demand that a storyteller tell her stories honestly and artfully, in fact it may at times encourage the opposite, but as an artist and professional, a trial lawyer must adhere to a higher standard. Some storytellers strive for verisimilitude (accuracy and authenticity in description) in order to lead and teach their audiences, and some are snake oil salesmen who simply say what they believe the suckers want to hear in order to cunningly achieve an undeserved outcome. The latter group enjoys quite a bit of success. As Mark Twain said, “A lie can travel halfway round the world while the truth is putting on its shoes.” Dishonest stories are toxic waste in the stream of public consciousness. They promote delusion, ignorance, prejudice, ill-conceived value systems, the destruction of attention spans, the demise of critical thinking and other maladies of the heart, mind and community. Triers of fact can be manipulated like any other audience by the razzle-dazzle of pulp advocacy. Such shenanigans when in engaged in by an attorney adversely affect the legal profession and the public at large.

As responsible professionals, trial attorney/artists who are learning their trade (a never-ending process) should work to discern which TV shows, movies, journalistic pieces, advertising and political campaigns, novels, and narratives presented by other lawyers at court, tell honest stories, and which are attempts to manipulate others. True stories are closely observed and fair in their telling. True stories artfully told have a point of view communicated through the interpretation of facts, not their distortion. Being able to distinguish a good story from a bad one makes a lawyer a more capable storyteller, and more aware of dishonesty in other lawyers when she sees it.

A lawyer isn’t allowed to lie under any circumstances. Some may roll their eyes and claim to be of the “real world,” but the Illinois Rules of Professional Conduct is pretty clear on the matter. See Rules 3.1, 3.3, 3.4, 4.1 and 8.4(c). 8.4(c) is especially direct, “It is professional misconduct for a lawyer to engage in dishonesty...” In practice of course attorneys aren’t disciplined for every white lie that they tell, but conscientious and professional lawyers make every attempt to be scrupulously honest. Trial lawyers have another motivation to be truthful. They work in a tough and often unforgiving arena, and can face very harsh sanctions for dishonesty. Trial lawyers always have to know, believe, or have reason to believe that what they are saying is true. (Criminal defense attorneys, of course, need only argue a reasonable hypothesis of innocence. They cannot tell lies when presenting the story of that hypothesis.)

Lying is not only unethical, it is inartful as well. Truthfulness in storytelling is not an abdication of an attorney’s duty to provide a client zealous representation. The contrary is true. A good storyteller knows that there is not only one story for every set of facts. The great Japanese film director, Akira Kurasawa famously illustrated this point about point of view in his 1950 masterpiece, Rashomon, whose brilliant conceit is in the telling of different stories from the perspective of four witnesses to the same events.

As a practical matter, the determination of pure objective truth is beyond the reach of mortal men, even trial lawyers. No one has the single perspective from which all truth can be observed. Absolute truth is a theological concept of faith, not one of civil society. Believers accept that incontrovertible reality is revealed by a divine being from his perfect unobstructed vantage point. No mortal has that vantage point at the courthouse on a Monday morning. Our communal lack of godlike perspective is why we need trials and other stories and why we need the human qualities of empathy, honesty and the desire for justice.

How a storyteller places emphasis on the various facts that she has to work with in large measure shapes the story. A film director may take an extended close up of a small child. The child is seated on a floor next to a closed door. His parents scream at each other off camera in the next room beyond the door. The director is not telling a story in which the details of the parents’ argument are relevant. The child’s reaction to the conflict is what the director sees as important. A good trial lawyer presents some facts as primary in the story she is telling and argues that some facts are not relevant and/or important. The storytelling director and the storytelling trial lawyer’s tasks are the same except their respective mediums require different technical knowledge and skills to shape their stories from the available facts.

A trial lawyer narrates and summarizes her client’s story. She also functions as an emcee, introducing witnesses’ testimony and other evidence to the fact finding audience. She is a prominent actor with many lines and actions in a show that unfolds before a judge and jury. Theater directors spend a great deal of time casting and costuming every role in a play because even the least prominently displayed actor can greatly affect the tone of an entire production. A tragedy can unintentionally become a comedy or vice versa pretty quickly when an actor starts to, say, laugh or cry uncontrollably during a funeral scene.

Trial counsel must make sure that the tone she sets in court serves the point of view of her client’s story at all times. Recently, a lead prosecutor made a tonal error in a trial involving a former police officer accused of killing his wife. He argued in part that the defendant, a former police officer, was an insider of the criminal justice system who knew how to manipulate the evidence at a murder scene. The defendant’s tone at trial was cocky and defiant. He seemed to

enjoy the risk of competing in a high stakes game. The defendant’s manner appeared to say, “I’m smarter than you. I know the system. You’re going to lose.” The lead prosecutor took the defendant’s bait. He also affected a hyper-confident and even flamboyant attitude. He wore an expensive suit to trial every day. His silver hair was slicked back. He looked like he was trying to one-up the defendant and show that he, the prosecutor, was the actual master of the system. He would have been wiser to wear a cheaper suit and un-greased hair, like an average middle class working guy with a wife and kids. The judge and jury would then be more likely to view the prosecutor as a good guy doing a tough job instead of as the defendant’s rival. The prosecutor might not be able to convincingly act in a self-effacing manner, if he is not humble by nature. It is inadvisable for a trial lawyer to act in an inauthentic way in court, unless she possesses excellent acting ability and formal training as an actor. Perhaps another more down-to-earth seeming lawyer should have been assigned to the case. The prosecutor might still prevail in the matter in the future, but he has diminished his probability of victory with his flashy style.

A witness is not an advocate, but he is called by a party to tell a story that is intended to help that party at trial. Good trial lawyers use items from a film director’s toolkit when preparing witnesses to be calm and convincing on the stand, and to deliver their testimony with clarity andcompleteness. Mike Nichols, the great American film director, was known as an “actor’s director.” One reason that actors loved to work with Nichols was that he created a warm and hospitable environment on his movie sets. Actors who worked on most films rarely were in the same room as the entirety of the rest of the film’s cast. Normally an actor only is on the set when it is time to shoot the scenes that he is in. He only meets other cast members who are in those scenes. Nichols’ films are different. Nichols’ invites the entire cast to be together for the reading of the script from beginning to end. Actors are able to see their scenes within the context of the arc of the entire story. Food and drink is provided. The atmosphere of Nichol’s read through is one of a working party. Nichols use of this method allowed his cast to calmly naturally and knowingly weave the very small stories of several minor characters in support of the larger narrative of the main character played by Meryl Streep in 1986’s Heartburn.

The trial lawyer/director should create an atmosphere of hospitality and team work for her witness/actor. A witness/actor who comes to a lawyer’s office should be greeted with real hospitality, not just a perfunctory offer of water or coffee in a conference room. The witness/actor should be introduced to all of the lawyers and support staff that he will be interacting with during the trial’s preparation and at the trial. Lunch together might be a good way to let people chat and get to know each other on a personal level. The trial lawyer/director should answer any questions the witness/actor has about the case when such disclosure doesn’t violate considerations of confidentiality or other legal or strategic considerations. This is not a waste of time in a busy law office. This sets the ground for working with the witness/actor on his testimony and it builds his commitment to working on the team effort of telling the story of the trial.

In the give and take of witness preparation, a trial lawyer is also like a theater director working with an actor on a one man show. She must communicate to the witness/actor what chapter of her client’s story the witness/actor is being called to tell. She takes the witness/actor’s own version of that part of the story from a deposition or interview(s), and instructs the witness/actor on which of the facts of that version are needed to prove elements of the controlling law of the case. A theater director patiently listened to the eighty pages of written material that the star of the pending one man show had written. The director then began an editing process. He suggested removing certain passages from the material that were unpersuasive. He gently explained to the star why the material didn’t work. The star trusted the director’s knowledge and judgment because the director had built a personal relationship with the star. He wanted a “third eye” to review his material and help him select the best sections so that his show would be a success. The director’s process of going over prior raw material with a star, analyzing that material, selecting the best parts, and rehearsing the material with the star is directly analogous to the process of the trial lawyer/director preparing the witness/actor.

A smart trial lawyer/director may arrange for a cosmetic makeover for a witness/actor (having a gang member get a haircut and put on a suit, for example), but would never encourage a witness/actor to be inauthentic and pretend to be someone other than who he is. A good trial lawyer/director would never attempt to hide a personal or demographic characteristic of a witness/actor in an attempt to please a jury/judge. Rather the trial lawyer/director would instruct the witness/actor to proudly embrace his own authentic nature. Very few people have the ability to transform their personalities for public consumption. They are called professional actors. Successful performances by untrained actors involve the relaxed expression of their own persons. Harold Russell won an Oscar for Best Supporting Actor in 1946 for The Best Years of Our Lives. He played a recent World War II veteran who lost both of his hands in that war. He was, in fact, a man of the same general description. People generally, and particularly when they hold a great responsibility such as being a judge or juror, admire a person who is respectful of them and humble, yet unapologetic and confident as well.

When a good trial lawyer conducts a direct exam she resembles a supporting actor. Tom Hanks won a well-deserved Best Actor Oscar for the 1993 film Philadelphia. His co-star Denzel Washington was not nominated for Best Supporting Actor. He did his job too well. In one pivotal scene, Washington gives to Hanks what a good trial practitioner gives to her witness on direct examination: focus and empathy. Washington provides space for Hanks to tell his story. He silently asks Hanks to continue at each transformation in the story’s narrative arc. He stands in for the audience as a sympathetic observer. Washington is personally transformed by the experience of listening to Hanks’ story as is the audience, who identifies with Washington. Hanks is wonderful in this scene, but Washington’s work integrated Hanks’ monologue into the totality of the film’s story and helped Hanks win the Academy Award. A trial lawyer might draw an objection for allowing a witness to speak as long as Hanks’ monologue without intervening questions. If one substitutes verbal questions for Washington’s silent ones however, Washington’s work is precisely analogous to a good trial lawyer’s point of view when directly examining a witness.

On cross examination a trial lawyer, not the witness, is the star and the storyteller. A successful cross-examining attorney tells a part of her client’s story to the fact finder through questions posed to an opposing witness. There is a game played in the improvisational theater called Questions Game. The players can only address each other in the form of a question. A rule of improvisational theater says that a player must communicate “yes, and” to the other player in a scene. In this way what has already happened in the scene is affirmed and used as a foundation for what comes next in the scene. “Yes, and” allows improvisers to spontaneously create a narrative together. The questions that work in the game are leading ones that get a silent affirmation of the preceding question and lead to a follow up. The questions then take on a rhythm which help builds an easy-to-follow narrative structure. Lawyers often struggle with question formation and pace on cross examination. Playing Questions Game can help them hone those skills since the wording of the questions that work in the game is also just what is needed on cross examination, as is the musical rhythm and pace used in the delivery of the questions.

The moral theme of a trial story, as opposed to a party’s legal theory of the case, is not something that must be proven to a fact finder. Great storytellers move their audiences. Clarence Darrow, the famous and great trial lawyer, placed his legal work within a larger social and humanist context. He used the legal process as an instrument of existential healing. His trial work was a tool to help individuals and change society. His concerns were larger than the law. Darrow’s wise and compassionate perspective made him a master of communicating the moral theme of a trial story. In Darrow’s closing argument at the Leopold and Loeb trial of 1924. Darrow argued, on social and metaphysical levels, against capital punishment and against a retributive instead of rehabilitative criminal justice system. Darrow’s eloquence in articulating a moral theme was not a mere trick of the trade. Darrow rather found his eloquence in the sincerity of his plea for the expansion of mankind’s capacity for mercy. If an attorney does not as sincerely believe in a moral theme as Darrow did in the Leopold and Loeb case, it is not advisable that she bring it up at trial.

Prior to the American invasion of Iraq in 2003, President George W. Bush and Vice-President Dick Cheney asked their advisers to provide them with “a moral argument” to present to allies of the United States. They came up with the Bush Doctrine of “preventive war.” The advisers argued that when a nation represented a threat to a second nation, the second nation had a right to attack the first nation in self-defense before the first nation would inevitably harm the second. This cynical attempt at a contrived “moral argument” was widely reviled in the court of international public opinion. Pope John Paul II said that the argument was specious and immoral. Most nations saw Bush’s invasion of Iraq as an act of aggression, not self-defense. The moral theme of a trial story must always come organically out of the trial lawyer’s true thoughts and feelings. If it is added as an insincere afterthought and sales pitch, it will not be persuasive. A lawyer’s enunciation of a moral theme at trial is a public litmus test of that lawyer’s integrity.

An opening statement must be non-argumentative, engage the fact finder’s imagination and tell a story. A non-argumentative telling of a story that uses colorful nouns and active verbs more than adjectives and adverbs will capture the fact finder’s imagination. Nouns and verbs show the listener what happened. Adjectives and adverbs tell the listener what to think. The rule against arguing in an opening statement is actually an opportunity for more effective advocacy. A rule of the improvisational theater is show, don’t tell. People would rather be shown something than have it described to them. In telling the storyteller is merely opining about what she imagines.

A good trial lawyer/storyteller gives the fact finder theater, not an op-ed piece. In the opening number from Stephen Sondheim’s A Funny Thing Happened on the Way to the Forum, Comedy Tonight, Sondheim and his collaborators show the audience what the evidence of the play they are about to see by introducing who is involved in the story (characters), where the story takes place (setting) and what the characters do (plot). Sondheim and company don’t argue that the audience is about to see is a comedy. It is apparent it is a comedy from simply showing the elements of the story. The filmmakers captivate the audience. The audience wants to look at the elements of the story in greater detail.

The character of Pseudolus is a bold storyteller. He doesn’t read notes. He can be heard. He isn’t afraid of making large physical gestures. Another story might require a more soft spoken style, but this is a broad comedy. A good trial lawyer/storyteller will adapt the intensity of her tone to the story she is telling. Pseudolus connects. He performs a jiu-jitsu trick of speaking directly to the audience and creating an illusion that he is speaking to each audience member individually. He is having a conversation with each audience member and inviting their silent positive responses.

In the film version of Forum, Richard Lester, the director, finds concrete images that match the lyrics. A trial lawyer/storyteller would be well served to imagine such images while she makes her opening statement. Film actors think while they say and do. Movie audiences actually go the theater to watch actors think. The thoughts affect the delivery of words to the listener, and the movement of the body to the viewer. By imagining internally while he speaks, an actor subtly and indirectly leads the imagination of his audience. The great actor, Spencer Tracy said, “Say your lines and don’t bump into the furniture.” What he naturally left out is, “and be thinking of images to match your words and actions at all times.” It was the thinking that made Tracy a great actor. A good trial lawyer/actor will use her imagination in front of the fact finder when delivering an opening statement, not tell the fact finder what to imagine.

There is obviously no prohibition against argumentation during the closing argument at trial. A good trial story culminates with a subjective re-telling of the story by the trial lawyer/storyteller. A great closing argument/story is told with unapologetic bias, by an advocate who is passionately confident that she has shown the fact finder, over the course of the trial, a narrative arc supported by concrete evidence of the existence and nature of the characters, settings and events of the story. A closing argument asks the fact finder to do something specific, and explains why it should be done. Stanley Kramer was a film director who was popular in the 1950’s and 1960’s. He often worked with Spencer Tracy. Kramer was a polemicist. He didactically told stories to make social and political statements. Where Stephen Sondheim is nuanced and clever, Stanley Kramer is insistent and direct. Stanley Kramer is a good artist to think about when writing and delivering a closing argument. 1967 was one year before Martin Luther King, Jr. was assassinated. At that time, white America in particular was polarized and sharply divided in its reaction to King’s crusade. Stanley Kramer was an impassioned liberal who challenged conservatives in the name of decency and justice, and exhorted liberals to live with more conviction. His films spoke for what he believed was right. The scenes preceding the final scene of 1967’s Guess Who’s Coming to Dinner were strong evidence that set up a memorable and effective closing argument delivered by Spencer Tracy at the movie’s end. The film was very successful commercially and helped foster the imperfect and gradual progress in white American attitudes about race that were happening at that time. Parenthetically, the monologue was the last speech Tracy ever delivered on film. He died shortly after filming it. It was a moving valedictory by a great actor and liberal lion of that era. The speech was also Spencer Tracy’s closing argument as to what he wanted people to do in light of his acting career and why they should do so.

When using electronic visuals at trial, a good trial lawyer is a master of her content, her delivery and any technology that she uses to aid in that delivery. A good trial lawyer is aware when the fact finder is looking at her and when it is looking at visual information that she has displayed. Projected images should never be allowed to take so much of the fact finder’s attention that the lawyer’s attendant commentary is ignored. She should also be sure that the technology is in good working order and that she and her team know how to operate it properly. This course book and complementary class only begin to explore the nexus between the art of storytelling and trial practice. A trial lawyer who has engaged in the improvisational games of the class, and has considered the storytelling examples above has begun to discover the power of effective storytelling, and to develop her own unique manner of relating stories in the service of her clients.


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