Lawyers are supposed to tell a story when they are trying a case. Professors taught me that in law school classes, I read countless columns by James McElhaney in the American Bar Association Journal over the years giving the same advice, and I went to a National Institute of Trial Advocacy training program where we role-played telling our side of the story.
“Of course it is all story telling–nothing more. It is the experience of the tribe around the fire, the primordial genes excited, listening–the old warrior, his voice alive, rising with the flames, now whispering away, hinting at the secret–the shivers racing up your back to the place where the scalp is made, and then the breathless climax, and the sadness and the tears with the dying of the embers, and the silence.
. . . [L] awyers must be storytellers. That is what the art of advocacy comes down to–the telling of the true story of one’s case.” [Gerry Spence, How to Make a Complex Case Come Alive for a Jury, 72 A.B.A. J. 62, 63, 64 (1986)]
“In every jury trial the attorneys construct rival stories from testimony and evidence whose meaning is unclear. A trial is a competition over the framing of this ambiguous material: how should the jury interpret the testimony and evidence? And it is also a competition over the authority of the lawyers: whose account of the meaning of this material deserves to be believed.” [Sam Schrager, The Trial Lawyer’s Art 11 (Philadelphia: Temple University Press, 1999)]
Not only did my training teach me storytelling, but my legal practice did also. I wrote hundreds of position statements in claims I defended. I drafted affidavits crafting each witness’s role into his or her story. Some were boring recitations of policy. Some were roll-your-eyes tales of stupid human behavior. Some were valiant attempts to improve an employee’s performance. All fed into the story I wanted the ruling body to believe, just as each character’s role in a movie contributes to the whole.
But as an attorney, I had to take the facts as given. I could leave some facts out, but I couldn’t create the stories out of whole cloth. And I had to remember that leaving facts out was risky—the attorney for the other side might well disclose the information at an inopportune moment. It was usually better to control the presentation of the evidence, whenever possible.
Now, as a writer both of fiction and of creative nonfiction, I can include only what I want to. When writing fiction I can make stuff up. I am constrained only by my imagination and by the parameters of the make-believe world I am building. It might be a very realistic world. It might be historically accurate. It might be total fantasy.
Even when writing non-fiction, creative writers have much more leeway than attorneys do. In fact, writers of memoir are often advised to shape their life story to fit their theme. Leave out parts. Combine characters.
As one editor states in telling writers to develop a story arc in their memoirs:
“. . . You may think because your book is based on your real life experiences (memoir), historical events, scientific experimentation, or natural observations that you don’t need a story to write a book. Think again.
. . .
To write non-fiction and memoir is to inscribe, shape and mold facts into a coherent tale. . . .
Writers need to find their story first and then figure out how best to tell it. . . .”
Story is everything, whether we seek to persuade a judge or jury to decide in our favor, or whether we seek to create a satisfying world for our readers. But I do enjoy the freedom to make up the facts.
When have you used a story to persuade in your career?