The Progressive Lawyer: Telling Your Client's Story at Trial

By adapting this timeless structure to our case presentations, we are grounding our strategic communications in a powerful, proven technique that works. This three-part story structure follows natural patterns that underlie the way we think and understand. No one needs special training or technology to understand a classical story structure because it is the way humans have been communicating with one another throughout history. Stories frame the context for communication and focus attention by making information specific and relevant to an audience. A story structure literally ties together scattered pieces of information. A story also can help us to focus our ideas and clarify our words and images, while producing an engaging experience for our target audience.

There is an independent research basis for using a story structure. As mentioned in Part One, the long-term memory already contains existing structures, or schema, that can help working memory organize and integrate new information. One of the most fundamental schemas is the three-act structure that forms the foundation for countless stories, novels, films, theatrical productions and TV shows. When we enlist the powerful three-part organizing structure that already exists in our audience's long-term memory and apply it to the structure of the new information we present, we are well on our way to creating a clear pathway through the limited donut-hole capacity of working memory.

The key to Aristotle's classical approach to persuasive communication is its three-headed appeal to emotion, reason, and personal credibility. Even if our intent is simply to inform our audience about something, we still have to persuade them to pay attention. After all, why should they even listen to us?

What's in it for Them?

While Act I of the story must ensure that we persuade our audience to focus on our message, Act II is designed to provide the logical reasoning needed to make a decision; the thesis. As a matter of proven neuropsychological fact, the syntax of the story-telling approach parallels the natural phenomenon of first making our decisions based on other-than-conscious processes, and then substantiating the decision by constructing reasons therefor. Decision-making is always the train, while reasoning is truly the caboose. There are no exceptions.

Story Thread and a Pattern

In order to make an emotional, motivational connection with our audience quickly, we have employed the classical elements of a strong story beginning in our Act I. It is there that we will connect emotionally with our audience, define the problem they face as decision-makers, and explain how they can solve it. This forms the story thread that will carry attention through our entire trial presentation. This thread will carry essential information through the working memory of our fact-finders, through to the long-term memory, where it will be less likely to be lost, forgotten, or distorted. By applying and repeating a familiar theme across the length of the story thread, the communicative strength of the thread is greatly enhanced. The linearity of the thread further ensures that the fact-embedded story structure conveys the important ideas to the observer in a strategically sequenced series, designed for optimal passage through the donut hole of the working memory.

Sequence What Is Most Important First

In Act I of our case story, we set in motion a number of powerful processes that continue to play out as we create the rest of our trial presentation. Just as in Act II, we will break up our ideas in into digestible pieces.

The key and challenge of any case presentation is not to play out all the information we have, but instead to select the strategically appropriate information to present. We cannot underestimate the value of the process of selecting only the ideas our judges need to know and breaking them into digestible chunks that are easier to understand and appreciate. Remember, simply understanding is one thing; understanding the case story the way we believe to be strategically advantageous is quite another.

A logic-tree structure is the best way to plan Act II story-telling. This structure helps us put the most important information at the top level of attention, in order to increase memorability and optimal application. A trial presentation should have just a few strategic case points, and we must vividly convey them in Act II. Here we identify these top-level points, clarify them, and create a logical and clear story structure in which to communicate them.

Perhaps the most strategically critical task we have before us is that of leaving out nonessential information, regardless of how fond we (or likely our clients) have become of it. Take, for example, “The Last Airbender,” which hit theaters in the United States in the Summer of 2010, offering moviegoers a live-action adaptation of the first season of the hit Nickelodeon animated series. In order to compress 20 episodes of the cartoon story into a 103-minute movie, some parts of the movie had to be left on the editing room floor. In a 2010 interview, famed director, M. Night Shyamalan commented about the scenes that did not make the final cut:

“The single most difficult decision was [cutting] the Kyoshi Warriors,” he said of a chapter in the story that involves Aang, Sokka, and Katara encountering a group of female warriors along their travels. “We shot [the scene] and they were amazing, and we spent an unbelievable amount of time choreographing them,” he explained. “And they just distracted from the movie, because the movie wasn't about them.”

Unless we are accustomed to this way of thinking, completing our Act II story can be the hardest thing we do. A wonderful collateral benefit is that this investment in learning will sharpen our critical thinking skills while ensuring that the new information in our trial presentation appears in the order and sequence needed to prevent overloading the judge's working memory.

Orienting the Court with the Setting

The initial foundational testimony establishes the context for our entire trial presentation. In a television show or a film, if a scene takes place in the family room of a house in the evening, we might first see a shot of the house exterior at dusk, which then fades into a shot of the family room, where the action will then take place. The establishing shot, which this film technique is called, efficiently shows the audience the where and when of a particular story.

Act I describes the establishing shot and answers the questions our judges are silently asking: “Where am I, and when is it?” Where is not necessarily a literal geographic location, but could be a setting such as a custody dispute, which establishes the context for the presentation, e.g., where the mother is disrupting the lives of her two high school-aged children with her inappropriate behavior and failure to supervise them appropriately. When could be a descriptive time, such as at a time when the children's resultant behavior could greatly affect their paths to college and through life.

At this early stage in the presentation, it is wise to avoid saying anything controversial or being unclear. The introductory role of Act I can quickly be compromised by matters the judge will experience as distractions or as presumptuous. Hearing an unsupported claim absent foundation can swiftly derail the trial presentation.

This first segment ' opening statement in the trial context ' is important because, when the presentation begins, judges might have different expectations from those that we have. Establishing the setting invites our judges to join us at the same location, establishes a common ground, and leaves no doubt about the context for what we are about to say.

Interesting the Judge

Every case story is about somebody. The main character of our case story is the person who will make a decision to do something or come to believe something by the end of the trial. Accordingly, the main character of every trial presentation, by definition, is our judge.

Establishing our judge as the main character makes the trial presentation personal to him/her. Because the judges are more personally and directly involved and have a stake in the outcome, their attention will be more focused. Many trial presentations tend to be “all about the lawyers,” with little, if any, consideration paid to the judge. Remember ' the main character of every trial presentation is the judge, while the lawyers are the supporting characters. This is a critical practice tip for successfully crafting case stories for trial presentations.

Generally speaking, interesting stories are about how people respond to something that has changed in their environment. People tend to become interested in stories about how other people handle changes in their circumstances, and what their choices reveal about their characters. When a main character experiences a change, an imbalance is created. Things are no longer as they used to be. This creates a challenge that sets the story in motion. In presenting a case at trial, we must define this challenge by identifying the specific point where the judge begins the action of the case story. Later, we will define the specific point where the judge wants to be in light of this challenge. The situation that has brought the case to trial could be a crisis brought on by parents' actions or failures to act, which behaviors have disrupted their children's environment. It could be the result of internal changes, such as a lingering depression, dissatisfaction with a relationship, various fears, or even impatience.

Remember, the story must initially be set in motion by defining a specific challenge the judge faces in deciding this particular case. We can accomplish this by answering the question your judge is likely pondering: “What specific decision-making challenges do I face in this particular case setting?”

Motivating the Judge

No one likes to remain in a state of prolonged discomfort. When we are challenged, we feel unsettled and emotionally uncomfortable ' at least until we bring the situation back into balance. The same holds true for the judge. We can initially arrest our judge's attention by describing a decision-making challenge that faces the court. Once this is established, the judge naturally wants to see how things will look when the situation is brought back into balance.

We can achieve this by answering the question the judge is no doubt asking: “Where do I want to be at the conclusion of this trial?” By describing the decision-making challenge facing the judge, and then showing the judge a vision of where s/he wants to be at the conclusion of the trial, we fuel the judge with the desire to get there with our help.

Creating Dynamic Tension

In the case story, the challenge (A) and the vision of resolution (B) play off one another to generate the energy that drives the case story forward, making the judge eager to hear the proposed solution. The gap between challenge and resolution engages the judge immediately with the unresolved tension of the case story. This timeless storytelling technique of creating dramatic tension helps us to quickly motivate, engage and advance an emotional connection.

The problem described by the challenge-to-resolution framework not only helps the judge engage with the trial presentation, but later it also helps us to select and prioritize information. Of all the information available, how do we know which information to include? The answer is to select only information that specifically helps the judge close the gap between A and B. Any other information is unnecessary for the trial.

Why Motivation?

The thought that people do not need to be engaged or motivated when faced with new information is based on the mythology that assumes that we can just pour facts into the passive minds of our judges, and they will automatically and somehow “get it.” In reality, research has shown that people need to engage new information actively in order to appreciate it effectively. Providing them with tools and techniques to do so, therefore, will help them learn and decide better. Why pass up the opportunity to engage the judge, when doing so can increase focus, and involvement? The Act I technique of creating dramatic tension by creating a gap between the challenge and the resolution is thousands of years old and offers a dynamism that still works today when it is applied to any type of presentation.

The problem created by the gap between the challenge and the resolution also forms the purpose of our trial presentation. So when we make the problem clear, we make our purpose clear. This problem is central to the entire trial presentation and forms the singular question that the presentation will strive to answer. It creates an emotional center of gravity that focuses the case story and makes all of its separate parts coherent. The gap between the challenge and the resolution defines the problem that adversaries are there to help their judges solve, while strategically advancing their clients' competing litigation objectives.

The manner in which we choose to frame the gap between the challenge and the resolution is also how we frame the entire trial presentation going forward. If we get this framing right, the trial presentation will create a connection with the judge. If we get it wrong, we will create a disconnect. Defining the problem for the judge is probably the hardest thing we undertake in any trial presentation. Once we have a clear problem defined, it is then time to let the judge know how we propose to solve it.

Focusing the Judge

With the challenge defined, and a strategically articulated desire instilled as to where the judge might want to be in light of that challenge, the gap between challenge and vision of resolution must be filled with a call to action. The call to action defines the reason that our client has hired us as trial counsel.

We have taken the time to figure out how the main character, the judge, can solve the problem at hand. We must then answer another question the judge is definitely wondering: “How do I get from A to B?” The call to action should describe what the judge should do or believe in order to solve the problem created by the gap between challenge and resolution. It is the entire point of the trial presentation. The call to action clearly defines what we want to accomplish with the judge and offers a clear direction and roadmap that the judge will be able to use and follow through the rest of the trial presentation.

The call to action also puts our ideas in a decision-making format, which is clearly important to the judge. If the judge accepts the call to action by the conclusion of the trial, we will know that we have succeeded.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, is the founder of Romanowski Law Offices, Brielle and Metuchen, NJ.

The first installment of this article, which ran in October 2011 (see www.lawjournalnewsletters.com/ issues/ljn_matrimonial/29_10/news/155746-1.html explored the nature and practical limits of the working memory. It concluded that, in order to succeed in the goals of client advocacy, attorneys must always ensure that there is an accessible structure to unite the entire collection of relevant proofs, argument and testimony into a coherent whole. A “story structure” with a beginning, middle, and end provides such a framework. This second installment focuses on crafting the beginning or Act I of the case story as a crucial key to successful trial presentation.

Story Structure

The classical elements of storytelling were first recorded by the Greek philosopher Aristotle over 2,400 years ago. Central to the approach was the concept that a story entails three Acts, providing a beginning, middle, and an end. Act I begins the story by setting up the key story elements, including the setting, the main character, a conflict, and the desired outcome. Act II drives the story forward by picking up on the conflict in Act I and developing it through the actions and reactions of the main character in response to changing conditions. Act III ends the story by framing a climax and a problem that the main character must face to resolve the situation, revealing something about his or her character. This time-tested structure keeps the target audience interested in the presentation and eager to find out what happens next.

By adapting this timeless structure to our case presentations, we are grounding our strategic communications in a powerful, proven technique that works. This three-part story structure follows natural patterns that underlie the way we think and understand. No one needs special training or technology to understand a classical story structure because it is the way humans have been communicating with one another throughout history. Stories frame the context for communication and focus attention by making information specific and relevant to an audience. A story structure literally ties together scattered pieces of information. A story also can help us to focus our ideas and clarify our words and images, while producing an engaging experience for our target audience.

There is an independent research basis for using a story structure. As mentioned in Part One, the long-term memory already contains existing structures, or schema, that can help working memory organize and integrate new information. One of the most fundamental schemas is the three-act structure that forms the foundation for countless stories, novels, films, theatrical productions and TV shows. When we enlist the powerful three-part organizing structure that already exists in our audience's long-term memory and apply it to the structure of the new information we present, we are well on our way to creating a clear pathway through the limited donut-hole capacity of working memory.

The key to Aristotle's classical approach to persuasive communication is its three-headed appeal to emotion, reason, and personal credibility. Even if our intent is simply to inform our audience about something, we still have to persuade them to pay attention. After all, why should they even listen to us?

What's in it for Them?

While Act I of the story must ensure that we persuade our audience to focus on our message, Act II is designed to provide the logical reasoning needed to make a decision; the thesis. As a matter of proven neuropsychological fact, the syntax of the story-telling approach parallels the natural phenomenon of first making our decisions based on other-than-conscious processes, and then substantiating the decision by constructing reasons therefor. Decision-making is always the train, while reasoning is truly the caboose. There are no exceptions.

Story Thread and a Pattern

In order to make an emotional, motivational connection with our audience quickly, we have employed the classical elements of a strong story beginning in our Act I. It is there that we will connect emotionally with our audience, define the problem they face as decision-makers, and explain how they can solve it. This forms the story thread that will carry attention through our entire trial presentation. This thread will carry essential information through the working memory of our fact-finders, through to the long-term memory, where it will be less likely to be lost, forgotten, or distorted. By applying and repeating a familiar theme across the length of the story thread, the communicative strength of the thread is greatly enhanced. The linearity of the thread further ensures that the fact-embedded story structure conveys the important ideas to the observer in a strategically sequenced series, designed for optimal passage through the donut hole of the working memory.

Sequence What Is Most Important First

In Act I of our case story, we set in motion a number of powerful processes that continue to play out as we create the rest of our trial presentation. Just as in Act II, we will break up our ideas in into digestible pieces.

The key and challenge of any case presentation is not to play out all the information we have, but instead to select the strategically appropriate information to present. We cannot underestimate the value of the process of selecting only the ideas our judges need to know and breaking them into digestible chunks that are easier to understand and appreciate. Remember, simply understanding is one thing; understanding the case story the way we believe to be strategically advantageous is quite another.

A logic-tree structure is the best way to plan Act II story-telling. This structure helps us put the most important information at the top level of attention, in order to increase memorability and optimal application. A trial presentation should have just a few strategic case points, and we must vividly convey them in Act II. Here we identify these top-level points, clarify them, and create a logical and clear story structure in which to communicate them.

Perhaps the most strategically critical task we have before us is that of leaving out nonessential information, regardless of how fond we (or likely our clients) have become of it. Take, for example, “The Last Airbender,” which hit theaters in the United States in the Summer of 2010, offering moviegoers a live-action adaptation of the first season of the hit Nickelodeon animated series. In order to compress 20 episodes of the cartoon story into a 103-minute movie, some parts of the movie had to be left on the editing room floor. In a 2010 interview, famed director, M. Night Shyamalan commented about the scenes that did not make the final cut:

“The single most difficult decision was [cutting] the Kyoshi Warriors,” he said of a chapter in the story that involves Aang, Sokka, and Katara encountering a group of female warriors along their travels. “We shot [the scene] and they were amazing, and we spent an unbelievable amount of time choreographing them,” he explained. “And they just distracted from the movie, because the movie wasn't about them.”

Unless we are accustomed to this way of thinking, completing our Act II story can be the hardest thing we do. A wonderful collateral benefit is that this investment in learning will sharpen our critical thinking skills while ensuring that the new information in our trial presentation appears in the order and sequence needed to prevent overloading the judge's working memory.

Orienting the Court with the Setting

The initial foundational testimony establishes the context for our entire trial presentation. In a television show or a film, if a scene takes place in the family room of a house in the evening, we might first see a shot of the house exterior at dusk, which then fades into a shot of the family room, where the action will then take place. The establishing shot, which this film technique is called, efficiently shows the audience the where and when of a particular story.

Act I describes the establishing shot and answers the questions our judges are silently asking: “Where am I, and when is it?” Where is not necessarily a literal geographic location, but could be a setting such as a custody dispute, which establishes the context for the presentation, e.g., where the mother is disrupting the lives of her two high school-aged children with her inappropriate behavior and failure to supervise them appropriately. When could be a descriptive time, such as at a time when the children's resultant behavior could greatly affect their paths to college and through life.

At this early stage in the presentation, it is wise to avoid saying anything controversial or being unclear. The introductory role of Act I can quickly be compromised by matters the judge will experience as distractions or as presumptuous. Hearing an unsupported claim absent foundation can swiftly derail the trial presentation.

This first segment ' opening statement in the trial context ' is important because, when the presentation begins, judges might have different expectations from those that we have. Establishing the setting invites our judges to join us at the same location, establishes a common ground, and leaves no doubt about the context for what we are about to say.

Interesting the Judge

Every case story is about somebody. The main character of our case story is the person who will make a decision to do something or come to believe something by the end of the trial. Accordingly, the main character of every trial presentation, by definition, is our judge.

Establishing our judge as the main character makes the trial presentation personal to him/her. Because the judges are more personally and directly involved and have a stake in the outcome, their attention will be more focused. Many trial presentations tend to be “all about the lawyers,” with little, if any, consideration paid to the judge. Remember ' the main character of every trial presentation is the judge, while the lawyers are the supporting characters. This is a critical practice tip for successfully crafting case stories for trial presentations.

Generally speaking, interesting stories are about how people respond to something that has changed in their environment. People tend to become interested in stories about how other people handle changes in their circumstances, and what their choices reveal about their characters. When a main character experiences a change, an imbalance is created. Things are no longer as they used to be. This creates a challenge that sets the story in motion. In presenting a case at trial, we must define this challenge by identifying the specific point where the judge begins the action of the case story. Later, we will define the specific point where the judge wants to be in light of this challenge. The situation that has brought the case to trial could be a crisis brought on by parents' actions or failures to act, which behaviors have disrupted their children's environment. It could be the result of internal changes, such as a lingering depression, dissatisfaction with a relationship, various fears, or even impatience.

Remember, the story must initially be set in motion by defining a specific challenge the judge faces in deciding this particular case. We can accomplish this by answering the question your judge is likely pondering: “What specific decision-making challenges do I face in this particular case setting?”

Motivating the Judge

No one likes to remain in a state of prolonged discomfort. When we are challenged, we feel unsettled and emotionally uncomfortable ' at least until we bring the situation back into balance. The same holds true for the judge. We can initially arrest our judge's attention by describing a decision-making challenge that faces the court. Once this is established, the judge naturally wants to see how things will look when the situation is brought back into balance.

We can achieve this by answering the question the judge is no doubt asking: “Where do I want to be at the conclusion of this trial?” By describing the decision-making challenge facing the judge, and then showing the judge a vision of where s/he wants to be at the conclusion of the trial, we fuel the judge with the desire to get there with our help.

Creating Dynamic Tension

In the case story, the challenge (A) and the vision of resolution (B) play off one another to generate the energy that drives the case story forward, making the judge eager to hear the proposed solution. The gap between challenge and resolution engages the judge immediately with the unresolved tension of the case story. This timeless storytelling technique of creating dramatic tension helps us to quickly motivate, engage and advance an emotional connection.

The problem described by the challenge-to-resolution framework not only helps the judge engage with the trial presentation, but later it also helps us to select and prioritize information. Of all the information available, how do we know which information to include? The answer is to select only information that specifically helps the judge close the gap between A and B. Any other information is unnecessary for the trial.

Why Motivation?

The thought that people do not need to be engaged or motivated when faced with new information is based on the mythology that assumes that we can just pour facts into the passive minds of our judges, and they will automatically and somehow “get it.” In reality, research has shown that people need to engage new information actively in order to appreciate it effectively. Providing them with tools and techniques to do so, therefore, will help them learn and decide better. Why pass up the opportunity to engage the judge, when doing so can increase focus, and involvement? The Act I technique of creating dramatic tension by creating a gap between the challenge and the resolution is thousands of years old and offers a dynamism that still works today when it is applied to any type of presentation.

The problem created by the gap between the challenge and the resolution also forms the purpose of our trial presentation. So when we make the problem clear, we make our purpose clear. This problem is central to the entire trial presentation and forms the singular question that the presentation will strive to answer. It creates an emotional center of gravity that focuses the case story and makes all of its separate parts coherent. The gap between the challenge and the resolution defines the problem that adversaries are there to help their judges solve, while strategically advancing their clients' competing litigation objectives.

The manner in which we choose to frame the gap between the challenge and the resolution is also how we frame the entire trial presentation going forward. If we get this framing right, the trial presentation will create a connection with the judge. If we get it wrong, we will create a disconnect. Defining the problem for the judge is probably the hardest thing we undertake in any trial presentation. Once we have a clear problem defined, it is then time to let the judge know how we propose to solve it.

Focusing the Judge

With the challenge defined, and a strategically articulated desire instilled as to where the judge might want to be in light of that challenge, the gap between challenge and vision of resolution must be filled with a call to action. The call to action defines the reason that our client has hired us as trial counsel.

We have taken the time to figure out how the main character, the judge, can solve the problem at hand. We must then answer another question the judge is definitely wondering: “How do I get from A to B?” The call to action should describe what the judge should do or believe in order to solve the problem created by the gap between challenge and resolution. It is the entire point of the trial presentation. The call to action clearly defines what we want to accomplish with the judge and offers a clear direction and roadmap that the judge will be able to use and follow through the rest of the trial presentation.

The call to action also puts our ideas in a decision-making format, which is clearly important to the judge. If the judge accepts the call to action by the conclusion of the trial, we will know that we have succeeded.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, is the founder of Romanowski Law Offices, Brielle and Metuchen, NJ.