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William Wray is a 3L at Roger Williams Law. He attended Georgetown University and Brown University for undergraduate, graduating in 2010 with a degree in Middle East Studies. Throughout high school and college he was involved in Mock Trial, which kindled his interest in litigation. At Brown he...



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Law might be boring, stories aren't.

Posted by William Wray on 09/17/2012 at 10:18 AM

I was doing some “work” on the internet the other day – reading an author's answers to readers' questions about the background of a book he wrote – and he said this:

“Sure I could explain [this technical question that you asked about] . . . . But without a narrative, our ability to care about such things is dramatically impaired. That’s why we need stories.”

Not long after that I was out to lunch with a skilled trial lawyer who was touching on the difference between trial and appellate level advocacy. Some things don’t change, he said. Preparation. Demeanor. Utmost respect for the tribunal.

But of the two, he said, trial work is about telling a story. Then he stopped, looked a little abstracted, took a drink, and set it back down. “No, I’m wrong. They’re both about telling a story.” At this point I felt that something was demanded of me, so I said something brilliant like ‘huhm?’ or ‘ah?,’ or nodded my head jerkily.

“They’re both about telling a story.” Finer distinctions emerged: theatricality is reserved for juries; the theme highlighted on appeal usually differs from that emphasized on trial; a dab of mustard on one’s tie may signal to the jury that aw-shucks-you’re-a-regular-guy-like-us, [1] but has never in history swayed an appellate judge.

One’s ability to make a good legal argument depends on one’s ability to manipulate literary tropes. This makes sense, if you think about it. The Apple v. Samsung trial was three weeks long, and consisted partly of highly technical testimony which surely went right over the heads of most of the jury members. How to engage the jury? The book Oil and Honor describes a mammoth jury trial based exclusively on highly technical aspects of New York contract law. Who cares? (I wrote a nauseating post about this book in 1L. This was before I understood that 1L blogs, if they are read at all, are not read for tedious book reports. My new rule of thumb is that if I ever write “Pennzoil initially filed for an injunction requesting specific performance” in a blog post, I have to scratch it out and start over.) The trial lawyer we left sipping his drink earlier in this post told me that some of his favorite cases were disputes over a decedent’s capacity to change his/her will. Why?

In short, legal disputes can be based around really boring things. And so for any lawyer, its really important to keep your audience awake. Studies have shown that when the average person is asleep, his ability to listen to speech and absorb the content decreases by nearly 70%. [2] So tell a story.

The trial lawyer told me that he always focused on the characters of the people involved in the will dispute, and never on the medical status of the person who made the will.

In one particular case [details changed] an elderly woman had changed her will to disinclude her son and leave almost everything to her daughter. The trial lawyer represented the daughter. The son paraded doctor after doctor to the stand to discuss how the elderly woman had failed certain diagnostic tests and how this surely deprived her of her judgment.

But the trial lawyer realized that people don’t think in terms of diagnostic tests, they think in terms of stories. So he gave the jury a reason for them to disinclude the son. It was as simple as three questions:

“Did your mother have a favorite child?”

“Yes, in fact, she did.”

“Who was it?”

“It was me, I guess.”

“What were you doing when she had triple bypass surgery in 1999?”

“I was skiing in Aspen.”

He gave the jury members the context of the story—the spoiled and long-favored son abandons his mother in her time of need, and her last act is to teach that damn kid a lesson—they knew the right decision. Once they had straightened out who the good guys and the bad guys were, they were predisposed to explain away the diagnostic tests and buy in to the cross-examination questions.

Similarly, Oil and Honor was won because the trial lawyer managed to spin a contract law case into men and women who still cared about a handshake in this "post-honor" world, versus city-slicking-weasels who live and die by the fine print.

And I have no doubt that Apple v. Samsung was won or lost based on some human aspect of the trial; maybe Samsung put on an arrogant expert on the stand; maybe Apple’s attorneys carefully dabbed the proper amount of mustard on their ties.

There are few people who think that the law itself is interesting. Most only like it because of the role it plays in human stories. Ask a law student. I know a few who use the law to help women in abusive relationships; some study law to tilt society left or right; many merely suffer law so that their own story involves fat paychecks and sharp suits. It's never the law that's the focus of their studies, and the law should never be the focus of any lawyerly presentation. It's about the stories.

 

Footnotes:

[1] Yes, this is a reference to Wendall Rohr from Runaway Jury.

[2] I don’t actually have a citation for this study. Obviously you don’t listen to stuff when you’re asleep. But since you scrolled all the way down to read this, here’s a picture of a kitten:

[picture of kitten removed by editor]