The Plot Thickens: Persuading Through Storytelling

1. The Plot Thickens: Persuading Through Storytelling Prof. Kenneth D. Chestek Assistant Director of the Center for the Study of Written Advocacy University of Wyoming College of Law Literature and the Law Conference Laramie, WY ◊ Jan. 11, 2013

2. A primer on narrative reasoning • Classical rhetoric: Three types of appeals • Ethos (personal credibility of the speaker) • Logos (logic) • Pathos (emotional) • The DNA of persuasion • One strand is the legal argument (logos) • Another strand is the emotional argument (pathos) • They are woven together in a double helix in an appealing and credible way (ethos)

3. A primer on narrative reasoning • Another way to think about these two strands: • Logos/legal reasoning = the Theory of the case • Pathos/narrative reasoning = the Theme of the case • Both are essential! • A sound legal theory is necessary, but not sufficient, for effective persuasion; it merely shows the court that it may rule in your client’s favor • An emotionally appealing theme (the narrative strand) gives the court a reason to want to rule in your client’s favor

4. But aren’t judges wary of emotions? • Many judges claim to be neutral umpires “calling balls and strikes” based only on the law and logical reasoning • Do you really believe that? • One empirical study suggests that stories do have an impact on judicial thinking: Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. Ass’n of Legal Writing Directors 1 (2010)

5. Cognitive psychology agrees Humans are hard-wired to respond to stories We are all locked inside our own heads The only way to understand other humans is through empathy: imagining what the other human is experiencing or feeling Stories are devices to explore empathy; this is where they get their power To pretend judges do not respond to story is to assume that they are not human

6. So what is “narrative reasoning?” Story (n): A character-based and descriptive telling of a character’s efforts over time to overcomeobstacles and achieve a goal.

7. So what is “narrative reasoning?” Story (n): A character-based and descriptive telling of a character’s efforts over time to overcome obstacles and achieve a goal. Character Obstacle (conflict) Goal (resolution) Source: Robbins, Johansen and Chestek, Your Client’s Story: Persuasive Legal Writing(Aspen Publishers 2013) = your client = legal or factual dispute = restored or transformed state of tranquility

8. Character development • Your client is the protagonist (hero) of the story • Heroes share certain characteristics • They have goals • They have obstacles to overcome • They are human, and therefore are not perfect • Heroic archetypes • Common protagonists that humans instinctively understand and root for • Choose one to portray your client Source: Robbins, Harry Potter, Ruby Slippers and Merlin: Telling the Client's Story Using the Characters and Paradigm of the Archetypal Hero's Journey, 29 Seattle L. Rev. 767 (2006)

9. Common heroic archetypes

10. The obstacle • Can be systemic • E.g., the law needs to be changed • Social systems and structures are also systemic obstacles • Can be internal (e.g. addiction or some character flaw)

11. The obstacle • Most often: antagonists (other characters in the story) • Villains (purely evil characters with no redeeming qualities) • Threshold Guardians (not purely evil; simply characters with legitimate goals that differ from your client’s goal) • Shapeshifters (formerly helpful characters who suddenly become unhelpful) • IMPORTANT: Resist the temptation to portray the other side as a Villain. Villains are purely fictional!

12. The goal • Must be legally permissible • This is where the logos of your brief meets the pathos • Legal research is key • This becomes the theory of the case • Should be emotionally appealing • Why should the court want to rule in your client’s favor? • What is just or right about your client’s position? • Should appeal to some deeply held value (what cognitive psychologists might call a deep frame) likely to be held by the court • This becomes the theme of the case

13. Deep frames • Examples of “surface frame” Death taxesJob creators • Examples of “deep frames” Light (openness; transparency)StrengthHealthFairness/justiceHappinessLoveTruthOpportunityIndependence (autonomy, self-reliance)CommunityCharity (helping others; unselfishness)

14. Think about this stuff early! We have been talking about prewriting (planning) so far The earlier you do this work, the more likely it is that you will have the evidence you need when it comes time to write the brief If the first time you think about theme and theory is when you sit down to write the brief, you have already lost the case Planning the theme from the beginning of the case will help you figure out what evidence to gather so as to be able to present the theme you have chosen when it comes time to write your brief

15. Writing the brief In the prewriting phase, you thought about your client’s character, his/her goals, and the obstacles he/she faces in achieving those goals You also chose an emotionally appealing theme to pair with a sound legal theory You’ve done all the discovery, maybe even tried the case; now it is time to write a brief (trial or appellate) to persuade the judge or judges Here are some tips on how to do so effectively

16. The brief tells the story Your client’s story is what you write about But the brief should also be structured as a story itself This does not mean just that the facts section must tell a story (although that is part of it) The entire brief is structured as a story, including the argument section

17. Climax: protagonist in maximum peril, reader interest piqued Falling action: conflict resolved Exposition: Pre-existing satisfactory condition (order) established Rising action: conflict (chaos) arises, characters developed Denouement: restored or transformed satisfactory condition (re-order) Preliminary Statement Statement of the Case Argument Conclusion The plot of a legal brief Story structure: Order, chaos, re-order The arc of a plot (fiction and legal)

18. The plot of a legal brief • Exposition (begins in Preliminary Statement) • “Sets the stage” • Pre-existing condition of tranquility established • Goals of protagonist revealed

19. The plot of a legal brief • Exposition • Rising action (Statement of Case and Argument sections) • Statement of Case • More exposition/set the pre-existing steady state • Conflict introduced; chaos results • Argument section • Exposition of law; the “legal setting” revealed • If law is unclear or uncertain, legal conflict (chaos) revealed and discussed

20. The plot of a legal brief • Exposition • Rising action • Climax (Argument section) • Facts are fully explained • Law is explained and clarified • Protagonist is at maximum peril • How will the story end?

21. The plot of a legal brief • Exposition • Rising action • Climax • Falling action (Argument section) • Law as explained is applied to facts as found • Things fall into place

22. The plot of a legal brief • Exposition • Rising action • Climax • Falling action • Denouement (Conclusion) • Shows why client should win • Restored or transformed steady state ordered by court (re-order)

23. The plot of a legal brief NOTE: if you have several major issues to discuss, think of each one as a “sub-plot” Same arc should apply to each issue