...and then, suddenly, it changed everything!

Posted on January 10, 2023 in Uncategorized

By Andrew Mishlove

The art of storytelling is the primary skill of a trial lawyer. The old paradigm that we argue cases in court is misleading. The adversarial system is a storytelling contest. Facts, science, and logic inform our stories, but the story is the thing. So, what is a story?

A story is a narrative that resonates with the listener because of common experience, even common DNA. A story may move a listener to change, if that change is consistent with the listener's existing mindset. A story has scenes. Scenes are narratives invoking the physical senses, that occur at a specific time in a specific place. A lawyer should try to present key parts of the case in scenes, with vivid descriptive language.

Don't just say, for example, "On September 1, the defendant wrongfully fired the plaintiff."

Instead, set a scene, "Billy Bates works in a dusty old brick building. He walks in coughing, smelly dirt in the air is visible in the sun shining through the grimy windows. Joe Snide calls Billy into his office, up a flight of stairs, through a door that keeps out the dust, and into the wood paneled, thick green carpeted room. Snide at his desk, smoking a cigar."

When the jury visualizes the scene, it becomes real to them. They smell the dirt and cigar smoke. Present tense may be grammatically inelegant, but it is effective.

A story has characters and reveals character. It is unpersuasive to say, "Joe Snide was a greedy, dishonest man." Facts, not arguments, drive a narrative. It's better to say, "Billy walks up that flight of stairs, opens the office door, smells the clean air. He hears the quiet and smells the cigar."

Snide says, "Bates, I'm telling you for the last time to quit complaining about the dust and your damn cough. I won't warn you again."

The jury visualizes the scene, draws its own conclusions, and is wedded to those conclusions far more fiercely than if you had simply told them what to believe.

How do we structure a story? Do real life scenarios have plots in the same manner as fiction? I still struggled with this concept. I have had wonderful teachers, though. Not the least of these is Maren Chaloupka, a Nebraska lawyer who introduced me to The Moth. www.themoth.org. The Moth is a storytelling organization whose method revealed for me a key component of the structure of a story.

Stories have phases. The introduction is where we meet the characters, and the conflicts are first suggested. The middle, or rising conflict is where good meets evil, the boy loses the girl, or the trust is betrayed. The climax is where evil is vanquished, and the boy gets the girl back again. The denouement, or epilogue, is where we see the better world that is the result.

The Moth explains these phases a bit differently and clarifies the introduction. The introduction is the world as it was, the way things were before "it" (whatever "it" may be) happened. This world is usually flawed in some way, a train wreck waiting to happen, perhaps blissful but ignorant. The introduction ends with "it." "It" changes everything. "It" is the start of the second phase, the rising conflict. The Moth story structure goes from the ways things were, to when "it" changed everything, leading to the conflict, climaxing in resolution of the conflict, and ending with the different (better, we hope) world as a result.

All trials have multiple stories. Characters have their own stories. If we see the moment when "it" changes everything, we will discover a compelling narrative. We will see how to structure our trial from voir dire, opening, examinations and closing. Finding "it" is the key.

I successfully applied this method in a recent trial. My client (we'll call him Andrew) was an overprotected, depressed young man who had been struggling. His mental health was deteriorating. He started pilfering his mother's anti-anxiety medications. One day he had a bad reaction and confessed to his parents. A day later he was stopped for erratic driving. The police saw a bag with his psychiatric medications. His blood test included the clonazepam that he had illicitly taken. It was a DUID case, driving under the influence of drugs.

I struggled to put Andrew's story together. I used a focus group, who hated Andrew for stealing his mother's drugs. The bad driving was enough to generate 911 calls. An experienced state trooper believed he appeared to be under the influence. I knew that my story had to address these facts head-on, but I was lost.

Yet, when I used the Moth method and looked for the moments that "it" changed everything, things came into focus. There are several such moments.

The biggest problem in the case was not the clonazepam level in Andrew's blood, but the fact that he stole the pills from his mother. When you have a very bad fact, the best way to deal with it is to embrace it. I spent time talking to Andrew, realizing that he would have to testify. He described his deteriorating mental health and the ineffectiveness of antidepressants. He told me how he would sneak into his parent's bathroom where the clonazepam was kept. He described the night he took too much. He described laying in his bed, sick, and telling parents about it the next morning.

The confession was "it!" "It" changed Andrew from an unsympathetic pill-popper into a young man who had taken the first steps down the road of redemption! That first step of redemption had to be a scene in the trial.

I set the scene for the jury. Andrew was in his pajamas, still in bed early morning after a tormented night. He heard his parents in the kitchen downstairs. He could smell coffee and toast. They were hurrying to get to work. Andrew walked down the stairs in his pajamas. His parents were in their business clothes, gulping coffee, hastening to leave. "Mom, I've been stealing your clonazepam and I took too much last night! I need help." His parents put down their coffee and briefcases, and they talked for several hours.

I invoked as much sensory detail as possible so the jury would visualize this defining moment of redemption, I hoped that they no longer felt the need to teach him a lesson that he had already learned. If so, they would be open to hearing the rest of the story!

Andrew was driving terribly. We had an argument explaining why that happened, as he was texting at the time, and we had the text records to prove it. Arguments, however, do not win cases; compelling narratives win cases. I had an experienced state trooper who observed Andrew and believed that he was under the influence of drugs. How was I to deal with that fact? It would not be enough to simply attack the trooper. Cops usually win those attacks. I had to find "it."

"It" was right in front of my eyes; but I refused to see "it." When Andrew was stopped the trooper naturally asked him if he was drinking or on drugs. Andrew replied that he had only taken his regular prescriptions and showed him the bag with the prescription bottles. Later, the trooper remarked to another cop that Andrew had a bag of narcotics. The parents were incensed that the trooper said that the antidepressants were narcotics. I thought was the kind of insignificant detail about which clients sometimes obsess – an annoyance. I was wrong. As I got past my own ego, I realized that the parents were right! It was the key to the trooper's "it" moment. This was just a regular texting while driving case, the kind every traffic cop sees every day, until the trooper saw "it." "It" was the bag of anti-depressant medication. Suddenly, "it" changed everything! The trooper stopped looking at Andrew as a kid who was texting, but only saw him as a druggie. After "it," everything else was just confirmation bias.

In my cross-examination of the trooper, I set the scene to bring the jury to a place where they could visualize "it" happening. The trooper was happy to oblige. It was not an attack on him. From his perspective "it" simply explained the chronology of the investigation. To the defense, however, "it" explained why the trooper's view of Andrew was tainted. So, I lingered there. A cold spring afternoon with heavy traffic on wide street lined with strip malls. Andrew shivering. He had never before been stopped by the police. The trooper gladly described how texting while driving is a big problem and part of every erratic driving investigation. He proudly admitted he was concerned about it from the start. He would often ask a driver about texting, or even ask for consent to see the phone. It was on his mind this time, until "it" happened. From that moment, it was only about drugs. Without attacking the trooper at all, I was able to get the jury to see Andrew differently than did the trooper.

The Moth method is, admittedly, an artificial construct. Reality does not fit neatly into preconceived categories. Even so, there are often repeating patterns and paradigms. When you are confronted with an immutable bad fact in your case, do not deny it, do not hide from it. Embrace the bad fact and look for that moment when "it" happens. "It" might be the thing that changes the bad fact, like Andrew's redemption, or "it" might be the moment that puts the bad fact into your defense theory, like the bag of medications. If you look for "it," there is a good chance that you will find "it."

When you find that moment in your story where everything changed, you will know the scene that you need to set. These are the moments in trial where you should linger, using the power of storytelling, getting to the jury to visualize.

"It" gives you a moment when you can say to the jury in closing, "...and then, suddenly, it changed everything!" And they will nod their heads with you!