News
Law Practice
Jun. 18, 2002
Teller of Tales
Dicta Column - By Kirk A. Pasich - A lawyer is, in essence, a storyteller. It is a lawyer's task to entertain, enthrall, and, perhaps most important, convince an audience to believe the story that the lawyer tells.
Dicta Column
By Kirk A. Pasich
A lawyer is, in essence, a storyteller. It is a lawyer's task to entertain, enthrall, and, perhaps most important, convince an audience to believe the story that the lawyer tells. The lawyer's story must transform complexities, provide context, inspire pathos, reach across a broad spectrum of people, instill a desire to right a wrong and, ultimately, must convince the audience to do what the lawyer asks.
Truly effective stories appeal to those of diverse backgrounds, levels of sophistication and understandings. The story also must be told in different settings - starting at the earliest days of the case, when a matter may be challenged by demurrer; through the wars of discovery, when the task may be to convince a judge or referee that discovery is or is not appropriate; through summary judgment regarding whether there is a triable issue of material fact; through trial, when both judge and jury must be convinced; and, ultimately, on appeal, when a panel of justices decides a client's fate.
Just like any story, the tale a lawyer tells will start typically with nothing more than a nebulous sense of what might be involved; will develop through outlines and revised outlines; continue with drafts, and the presentation of a final product at trial, and it will conclude with the presentation of a revised edition on appeal.
All good stories, including those told by lawyers on behalf of their clients, have several common elements:
• Theme. First, the lawyer must know the theme of the case. If possible, it should be a single, simple theme. The theme should be created as early as possible in a case and be modified, as necessary, as the evidence develops and the case proceeds.
The story and the theme of the case should be ones that can be understood by all. They should be simple, but not condescending.
For example, there have been a number of large complicated environmental insurance coverage cases that have been tried to juries. These cases often involve decades of insurance policies, many insurance companies and numerous sites of alleged pollution. Obviously, juries tend not to be sympathetic with an alleged corporate polluter who allegedly has shown disregard for natural resources. In this circumstance, the story takes on a heightened importance.
In this situation, the insurance companies' theme could be that a jury should not reward an evil corporate polluter who is destroying water quality and costing taxpayers millions of dollars. The insured's theme might be that the insured made innocent mistakes of exactly the nature that the insurance companies collected millions of dollars to insure against, and now the insurance companies are breaking their promise. Of course, the real question in the case is: Who is going to pay? Both sides need to deliver their themes of the case with this question in mind.
In one such trial, both sides did exactly that. A 7-year-old child happened to have watched the closing arguments. At the end, he was asked what he thought the case involved. His answer showed that the lawyers had successfully communicated the basic issue in the case. As this young boy put it, the lawyers were fighting over who would pay for the costs of cleaning up trash.
The old rubric that there are two sides to every story almost always rings true in a jury trial. People see and report things differently. The best told story, and, therefore, the best presented case, will have consistency; will mesh apparently conflicting events, descriptions and testimony; and will culminate in a coherent presentation. It is only when the lawyer knows all of the elements of the story and how they relate that the story can be told in a consistent fashion without the lawyer's own evidence contradicting his own story.
• Story elements. The lawyer must decide how specific or general to be in telling the story. For example, in copyright infringement or idea submission claims, a plaintiff often tries to prove that a successful motion picture or book impermissibly borrowed his expressions or story concepts. In such circumstances, it is not unusual for a plaintiff to talk about the general similarities in stories, while the defendant talks about the lack of similarities in the specifics of dialog, setting and the particular adventures involved.
The plaintiff also may argue that one fantasy story is too similar to his because of the unlikely cast of characters joining together in a quest to find something or to obtain the assistance of an all-powerful wizard. The defense lawyer could respond that such a general description could describe "The Fellowship of the Ring," "The Wizard of Oz," "Stars Wars: Episode IV" and many other tales and that this theme is so common as to be unprotected.
In this way, the jurors will have the chance to hear the complexities of an intellectual property claim told in the context of stories and motion pictures with which they grew up. In this fashion, they will be entertained while simultaneously gaining a better understanding of the issues.
• Chronology of story. A lawyer must not lose sight of the fact that for most juries, the parties' stories unfold like a mystery novel and the challenge that faces the jurors is figuring out how all the pieces of the puzzle come together. Just as in a mystery, the facts need not be presented in a chronological or coherent fashion, and, just as in a mystery, there may be missing pieces to the story until the end.
• Who tells the story. The evidence buttressing the lawyer's story is typically presented through witnesses. The evidence is not presented to the jury in a chronological fashion, with witnesses returning again and again to the stand to tell what happened next, so it is important that a lawyer first give the jury a road map of the story so that the jurors have a sense of what is coming.
The story ultimately will be brought together into a single cohesive whole in the lawyer's closing argument. At that point, the lawyer will get to weave together all of the diverse elements of the evidence and lay out the story from start to finish. The goal will remain, as it was at the start, to tell a convincing story.
• How much to tell. The story should be told simply and with as much brevity as possible. We are in the era of sound bites and short attention spans. Judges are overburdened, and juries are performing a service for which they are undercompensated. The value of their time must be considered, and they should know that their time is appreciated. What better way to say that than by a story told as directly and succinctly as possible?
As Shakespeare once said, "An honest tale speeds best, being plainly told."
Kirk A. Pasich is a litigation partner in the Los Angeles office of Howrey Simon Arnold & White.
By Kirk A. Pasich
A lawyer is, in essence, a storyteller. It is a lawyer's task to entertain, enthrall, and, perhaps most important, convince an audience to believe the story that the lawyer tells. The lawyer's story must transform complexities, provide context, inspire pathos, reach across a broad spectrum of people, instill a desire to right a wrong and, ultimately, must convince the audience to do what the lawyer asks.
Truly effective stories appeal to those of diverse backgrounds, levels of sophistication and understandings. The story also must be told in different settings - starting at the earliest days of the case, when a matter may be challenged by demurrer; through the wars of discovery, when the task may be to convince a judge or referee that discovery is or is not appropriate; through summary judgment regarding whether there is a triable issue of material fact; through trial, when both judge and jury must be convinced; and, ultimately, on appeal, when a panel of justices decides a client's fate.
Just like any story, the tale a lawyer tells will start typically with nothing more than a nebulous sense of what might be involved; will develop through outlines and revised outlines; continue with drafts, and the presentation of a final product at trial, and it will conclude with the presentation of a revised edition on appeal.
All good stories, including those told by lawyers on behalf of their clients, have several common elements:
• Theme. First, the lawyer must know the theme of the case. If possible, it should be a single, simple theme. The theme should be created as early as possible in a case and be modified, as necessary, as the evidence develops and the case proceeds.
The story and the theme of the case should be ones that can be understood by all. They should be simple, but not condescending.
For example, there have been a number of large complicated environmental insurance coverage cases that have been tried to juries. These cases often involve decades of insurance policies, many insurance companies and numerous sites of alleged pollution. Obviously, juries tend not to be sympathetic with an alleged corporate polluter who allegedly has shown disregard for natural resources. In this circumstance, the story takes on a heightened importance.
In this situation, the insurance companies' theme could be that a jury should not reward an evil corporate polluter who is destroying water quality and costing taxpayers millions of dollars. The insured's theme might be that the insured made innocent mistakes of exactly the nature that the insurance companies collected millions of dollars to insure against, and now the insurance companies are breaking their promise. Of course, the real question in the case is: Who is going to pay? Both sides need to deliver their themes of the case with this question in mind.
In one such trial, both sides did exactly that. A 7-year-old child happened to have watched the closing arguments. At the end, he was asked what he thought the case involved. His answer showed that the lawyers had successfully communicated the basic issue in the case. As this young boy put it, the lawyers were fighting over who would pay for the costs of cleaning up trash.
The old rubric that there are two sides to every story almost always rings true in a jury trial. People see and report things differently. The best told story, and, therefore, the best presented case, will have consistency; will mesh apparently conflicting events, descriptions and testimony; and will culminate in a coherent presentation. It is only when the lawyer knows all of the elements of the story and how they relate that the story can be told in a consistent fashion without the lawyer's own evidence contradicting his own story.
• Story elements. The lawyer must decide how specific or general to be in telling the story. For example, in copyright infringement or idea submission claims, a plaintiff often tries to prove that a successful motion picture or book impermissibly borrowed his expressions or story concepts. In such circumstances, it is not unusual for a plaintiff to talk about the general similarities in stories, while the defendant talks about the lack of similarities in the specifics of dialog, setting and the particular adventures involved.
The plaintiff also may argue that one fantasy story is too similar to his because of the unlikely cast of characters joining together in a quest to find something or to obtain the assistance of an all-powerful wizard. The defense lawyer could respond that such a general description could describe "The Fellowship of the Ring," "The Wizard of Oz," "Stars Wars: Episode IV" and many other tales and that this theme is so common as to be unprotected.
In this way, the jurors will have the chance to hear the complexities of an intellectual property claim told in the context of stories and motion pictures with which they grew up. In this fashion, they will be entertained while simultaneously gaining a better understanding of the issues.
• Chronology of story. A lawyer must not lose sight of the fact that for most juries, the parties' stories unfold like a mystery novel and the challenge that faces the jurors is figuring out how all the pieces of the puzzle come together. Just as in a mystery, the facts need not be presented in a chronological or coherent fashion, and, just as in a mystery, there may be missing pieces to the story until the end.
• Who tells the story. The evidence buttressing the lawyer's story is typically presented through witnesses. The evidence is not presented to the jury in a chronological fashion, with witnesses returning again and again to the stand to tell what happened next, so it is important that a lawyer first give the jury a road map of the story so that the jurors have a sense of what is coming.
The story ultimately will be brought together into a single cohesive whole in the lawyer's closing argument. At that point, the lawyer will get to weave together all of the diverse elements of the evidence and lay out the story from start to finish. The goal will remain, as it was at the start, to tell a convincing story.
• How much to tell. The story should be told simply and with as much brevity as possible. We are in the era of sound bites and short attention spans. Judges are overburdened, and juries are performing a service for which they are undercompensated. The value of their time must be considered, and they should know that their time is appreciated. What better way to say that than by a story told as directly and succinctly as possible?
As Shakespeare once said, "An honest tale speeds best, being plainly told."
Kirk A. Pasich is a litigation partner in the Los Angeles office of Howrey Simon Arnold & White.
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