The Bro (Brody) of Wall Street: Tell The Best Story If You Want To Win: Ideas About Structure And Characters

Gunnar Larson g at
Mon Apr 10 07:34:21 PDT 2023

The Wolf of Wall Street drew an audience.

The Bro (Brody) of Wall Street will do the same.

"[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

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

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

>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
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.

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

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.

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.

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.

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.

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.
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