By MARC GUSTAFSON, Special to Lawyers Weekly
It has become more than a cliché and the basis of innumerable jokes, but few of us will ever forget the late Johnnie Cochran’s closing argument mantra “if it doesn’t fit, you must acquit.” (Ironically, it is purported that the much lesser-known Gerald Uelmen actually penned this phrase.)
Of all of the evidence and all of the testimony from O.J. Simpson’s 134-day televised murder trial, these seven words will be forever etched in our collective minds. Why? The power of storytelling.
In a recent post-op analysis of a courtroom hearing, I found myself wondering what had brought so many quizzical looks to the judge’s face during my oral argument. After all, I was arguing the plaintiff lacked standing based on a comparison of two provisions found in the North Carolina Uniform Trust Code and the North Carolina Limited Liability Company Act.
I know. Who wouldn’t have been captivated by this? Isn’t this, after all, why we went to law school?
After much gnashing of teeth and wringing of hands, I came to the simple conclusion that I had failed to tell my client’s story. You see, this case wasn’t about standing or the Trust Code or the Limited Liability Company Act. It was about a party’s freedom to contract. Just. That. Simple.
What was lost in my bombarding of the court with code subsections, attempting to divine legislative intent, and dissecting an operating agreement was the simple fact that a party has the freedom to contract, to accept members into his company and to ultimately decide who is entitled to sue him.
Many of us dismiss storytelling as some low-brow form of communication reserved for joke tellers, yarn spinners and Matlock. I once laughed out loud when an esteemed Atlanta lawyer conceded to a federal court judge that he was “simply a one-trick pony.”
But as Daniel Pink explains in his A Whole New Mind, “Story is high concept because it sharpens our understanding of one thing by showing it in the context of something else.” It turns out that we remember these stories because stories are, in fact, how we remember.
To make our arguments stick, it turns out, we as lawyers must be able to combine the logic of the law with the art of the story.
Particularly in our world of ever-present MP3 devices, information streaming from the Internet as if shot from a fire hose, nearly constant contact resulting from PDAs, and who knows what’s next, storytelling will become a key way for lawyers to distinguish their ideas in an increasingly crowded information marketplace.
This doesn’t mean we can avoid the attention to detail that got us into and through law school. To the contrary, like a well-crafted theatrical backdrop, these details will form the underpinnings for the ultimate performance whether before a judge or a jury.
So, just as a writer spawns an idea, conducts research and outlines the chapters, but then steps back to craft the story before embarking on her masterpiece, so too must a lawyer develop a theory of the case, research the law, gather relevant facts and draft her outline, but then step back to craft her story for the case.
Like the writer, the lawyer must then weave this theme throughout her argument so that the listener can (hopefully) organize the facts, contexts and emotions into a coherent narrative that matches the lawyer’s theory of the case.
If nothing else, all of the hard work will leave you with a good story to tell.
Editor’s note: Gustafson is an attorney with Essex Richards in Charlotte. His practice focuses on general, commercial and employment litigation. He also counsels small businesses on lending, corporate and real estate matters.