From a legal perspective, the theory or theme of the case is the story that needs telling.9 We may know a good story when we hear it, but are there
The Wolf of Wall Street drew an audience. The Bro (Brody) of Wall Street will do the same. https://www.mondaq.com/unitedstates/life-sciences-biotechnology--nanotechnol... "[T]ell a great story if you want to live." A newly minted screenwriter, on the verge of pitching his spy thriller to studio executives, was diagnosed with a serious medical condition. He shared this advice from his doctor friend: "The most important thing I could do to stay alive was to make sure my doctors remembered me...and the only way to do that was to make my story a lot more compelling than their other cases."1 We can recast this advice as—tell a great story if you want to win. The battle of stories at trial concludes with the more compelling narrative becoming the truth in the verdict.2 Last year in Pro Te, we interviewed a panel of our experienced trial attorneys. Two themes that emerged from that discussion were the necessity of pretrial workup that focuses on how the evidence will matter at trial and forming the jury's perception of this evidence by telling the best story.3 Humans have made meaning with our stories throughout history. Long before we wrote our stories, cultures around the world memorialized both sweeping epics and the mundane events of daily rituals in painted and carved pictures.4 Theatre was a primary storytelling venue that drew large audiences from all strata of society in Shakespeare's day.5 The nineteenth century marked a highwater point for the influence of the novel.6 Multiple golden ages of television have been proclaimed and debated.7 Watching stories on our electronic devices has expanded exponentially with Nielsen reporting that for the first time, in July 2022, streaming viewership exceeded both broadcast viewing and cable viewing.8 practical resources that lawyers can use to understand what envelopes an audience into a story? Screenwriters, attune to efficiency and profit, have created a sub-industry dedicated to analyzing how stories work. As lawyers, we can learn from these modern storytellers, screenwriters, as well as novelists and journalists. The same eighty-five percent of U.S. households who subscribe to streaming services10 are also our judges, juries, mediators, clients and opposing counsel. STORY STRUCTURE I. TO CONTROL CAUSATION, CONTROL CHRONOLOGY Causation is a crucial element in product liability litigation. Even when a plaintiff seeks to hold a company strictly liable and is not required to prove intent to harm, they must connect the product at issue, and often even more specifically its design and warnings defects, with her injury. Narratives create order out of disorder. In his lectures on the novel, E.M. Forster explored how the structure of a story's plot provides the route beyond the evidence, "truer than history," by "suggest[ing] a more comprehensible and thus a more manageable human race" by giving the "illusion of perspicacity [shrewdness] and power."11 Forster differentiated a "story" from a "plot," with the crucial distinction that a plot establishes why events happen, "the emphasis falling on causality."12 Attending to the plot or structure of a story allows us to plant the seeds of causation in the mind of the judge or jury. When given a series of events in a sequence, the inclination is to form connections between these events. Stories exploit a well-known logical fallacy blurring correlation with causation: The idea that because something occurs after something else, the former caused the latter is not only a common logical fallacy, it is of course the wellspring of narrative too. Narrative is cause and effect, linked into a chain; 'Post hoc ergo propter hoc' [after this, therefore because of this] is storytelling.13 In our work defending product liability and pharmaceutical cases, we see this pervasive plaintiff tactic that follows a predictable pattern. The plaintiff uses the defendant's drug, medical device, or product. Subsequently, the plaintiff claims she experiences an injury. There is a company document discussing some aspect of the warnings or design of the device. This information is sequenced in a story that suggests causation regardless of whether the company's topics of discussion have any connection to the injury or establish any flaw in the product's design or warnings. To disrupt this narrative connecting a statement from a company employee with a particular injury, we can start by attending to chronology. Sequencing can be more subtle than direct argument. Even in motions practice, where tackling causation head-on is a path to summary judgment victory, we can control the chronology through both careful selection and favorable organization in the presentation of the facts. II. THE BEGINNING IS NOT ALWAYS THE BEST PLACE TO START The beginning of a story may be just as important as the sequence of events for establishing the audience's focal point. Pause to consider the beginning of a favorite fictional story. Some stories run from birth to death, but most stories are much more tightly constructed to show characters changing: "Change is the bedrock of life and consequently the bedrock of narrative."14 Plaintiffs will work to tell a straightforward story about change in their lives before and after the use of the product and the resulting injury. But another way to describe this principle is that most stories tell how a problem is solved.15 Often, the literary means to achieve this is for characters to go on journeys, physically or metaphorically.16 For defendants, the journey of the story might begin with identifying and thoroughly explaining the reason that the product or innovation was created in the first place. In other words, explain the problem the product was designed to solve. If we can take this narrative out of our opponents' hands, we can capture the fulcrum on which the story of the litigation turns. Rather than misdirection, this is more like what legal writing instructor Ross Guberman describes as the "panoramic shot" frequently used in movie opening sequences to "create a similar bird's-eye-view-effect."17 Provide a broader vision, a more descriptive context, and a wider view of reality than the plaintiff's inevitable story portraying a profit-seeking company heedless of its customers' safety. CHARACTER DEVELOPMENT I. FIND THE ANECDOTES HIDING BEHIND ADJECTIVES Lawyers should see those involved in a case as characters because this reminds us that it is our job to set the stage: "Nothing in the world is inherently interesting—that is, immediately interesting, and interesting in the same degree, to all human beings. And nothing can be made of interest to the [audience] that was not first of vital concern to the writer."18 Making real people believable differs from creating fictional characters, but both are about finding details that are memorable, specific, and even, at times, ironic. One technique discussed in James B. Stewart's guide to telling good stories in non-fiction involves substituting short stories for descriptions: "[W]henever you're considering the use of an adjective, it's worth pondering whether an anecdote exists that would make the same point more convincingly."19 This is a more specific version of the show-don't-tell principle. It can be useful in pretrial fact investigation to locate details without directly asking witnesses to come up with stories on command.20 Any writing in which we develop the facts—from briefs to expert reports to mediation statements—can invoke this principle. Start the process early of searching for anecdotes that illustrate the overarching trial narrative. II. FOCUS ON MAKING CHARACTERS ACTIVE Character development in stories centers around building empathy. A lesson from storytellers is that audiences do not empathize with characters because they are virtuous. Instead, audiences will follow an active and resourceful protagonist on almost any journey. If a character is passive, his goodness will not redeem him from the mortal sin of being boring.21 This principle can work in both directions in litigation. Focusing on the passivity of an opponent is more palatable than a direct attack. If the plaintiff is claiming a particular injury, but the timeline shows that the only time the plaintiff complained about it was when lawyers got involved, this characterization works even better. But the passivity characterization could also touch on areas not directly related to the heart of the matter and be a useful tool in making a plaintiff or witness less likable. Contrasted with passivity arcs for opponents, an active arc will be most effective when it highlights positives in the defense story. But lawyers should not neglect opportunities to emphasize growth, learning and development that can augment the portrayal of company witnesses and experts. If our client's story can capitalize on both an active arc for our side and a passive arc for our opponent, this juxtaposition ties into another characterization principle about how characters are most often understood through comparison. John Truby's screenwriting manual is a complex 22-step guide to creating stories that organically develop from characterization.22 While much of his paradigm is specific to his own craft, he includes illuminating discussion about how all characters in a story should form a web so that their interplay highlights the key features of the main protagonist.23 He recommends interconnection as both a characterization and an organization technique. CONCLUSION The stories we tell are about real companies and people and their problems and conflicts. Even so, considering these principles about structure and characterization used by fiction writers offers some insights into how compelling stories convince their audiences that they are worth the journey. Our goal is for our audiences—both before and during trial—to believe in our client's stories so that we can persuade them to follow us to the correct conclusions.