Litigator shows the power of storytelling

Listen to this article

Storytelling is an essential tool for a trial lawyer when approaching a case. Veteran Louisiana litigator Russ M. Herman told a group of plaintiff’s lawyers that storytelling is an important way to educate a jury and get them to reach the decision a litigator wants.

Herman said, “The ability to tell a story is paramount and central to our ability to persuade what I call our ‘12 in the box and two on the side.’ ”

The discussion took place during the Wisconsin Academy of Trial Lawyers Summer Seminar in Egg Harbor.

Herman, of the New Orleans firm Herman, Herman, Katz & Cotlar, L.L.P., presented a discussion on “Storytelling in Opening and Closing Arguments.”

“As children, as parents, as grandparents, the basic learning mechanism is the telling of a story, whether it’s an Aesop’s Fable, whether it’s reading Dr. Seuss or Goodnight Moon,” Herman said.

To support his point about the power of storytelling, Herman offered examples of ancient religious teachings, which were told through stories long before they were written down. He also pointed to classic stories such as El Cid, which were spoken prior to appearing in writing.

When holding initial meetings with clients, Herman said he will look for a story to tell. Then he will begin developing a closing argument in his head while speaking with the client. If he can open and close the case, then it might be worth taking.

Structuring the Story

Next, the storyteller needs to consider how the story will be structured. Back in the 1960s, he said, the basic form for many stories was based on the structure of a formal essay. However, there are many more effective ways to structure a story, he said.

First, a storyteller can simply answer the questions of who, what, when, where and why.

“I like to use the five Ws,” Herman said. “If you’ve got them mastered in telling your story, you could lose your briefcase and your entire file and still open, close and examine every witness in the case. … It’s a great structure.”

Another story structure revolves following the path of yesterday, today and tomorrow. The litigator/storyteller can discuss an event in the past, talk about the impact it has today and paint a picture of what life may be like in the future as a result of that past event.

The classic fairy tale structure can also be effective, Herman said. “Once upon a time… And they all lived happily ever after. Now it’s up to you, the jury, to make sure that happens.”

Finally, Herman said storytellers should consider the structure of double tracking.

“If you want to really get the jury into the story, I’d suggest that you try to master storytelling in what you call double tracking,” he suggested. “That is what most successful mystery writers and horror writers use to build suspense and to draw you into a book.”

The storyteller starts off telling the story from one point of view. At the chapter break, they begin telling the story from another point of view. The listeners anxiously await the moment when the two story lines will intersect.

Herman provided the example of an ambulance driver responding to a call; then he switched to the viewpoint of a railroad engineer coming down the track. He concluded with their unfortunate meeting on the track.

Decorating the Christmas Tree

Once a storyteller has the structure of the story, Herman said, it is time to consider adding rhetorical devices. Initially, the story is just a plain pine tree. The rhetorical devices are the ornaments, which transform it into a beautiful Christmas tree.

Developing a theme is one way to help decorate that tree. Those themes can come from anywhere — fables, proverbs, song lyrics, maxims or even nursery rhymes. He suggested tracking down the out-of-print book MacMillan Book of Proverbs, Maxims, and Famous Phrases as a vast source of potential themes. He also maintains a collection of nearly 100 songbooks, which he scours for themes. He noted that country western songs are particularly good sources.

Jurors need to remember what the litigator/storyteller has said and several rhetorical devices address that need, particularly, the rule of threes.

“We Americans think in threes no matter what our backgrounds,” Herman said. “We talk about three pigs, … three men in a tub, three blind mice. There were five Marx brothers, we say three. There were four stooges, we say three. There were four musketeers, we say three.”

He also encouraged the use of mnemonic devices such as the use of acronyms. For example a jury can be told that a danger was “POP — preventable, obvious and predictable.” That idea can be repeated throughout the trial.

“Repetition is fine,” Herman noted.

It also is important to realize that jurors will use their own experiences, biases and expectations to fill in any gaps in the information provided. Using a mock jury or focus group before proceeding to trial will help to identify any potential gaps the litigator will need to address at trial. He provided the example of a juror who i
s afraid a doctor would lose his license if found liable for medical malpractice. That would be an issue the litigator would want to address during opening and closing arguments, he said.

Finally, Herman discussed the notion of cross matching with jurors. That involves a conscious effort on the part of the litigator to match a juror’s background to a trait of the plaintiff, lawyer or witness, he explained. If a juror indicated an interest in baseball, provide an example from baseball, which makes a particular point and look directly at that juror when providing it, he said.

“I usually have two cross matches for every single juror who’s been chosen,” Herman said.

The goal is to educate the jury and persuade them that a particular perspective is correct. Using the time-tested tool of storytelling is one way to draw the jury into the case and make that happen.