By: Conley Wouters
Visiting Assistant Professor of Legal Practice Skills
Successful lawyers are successful storytellers. Nearly all legal practice skills share important commonalities with storytelling. Persuasive written advocacy may come to mind first. In an appellate brief or a dispositive motion, lawyers submit to the court competing tales of a single dispute. Even a brief’s “Facts” section consists not so much of the facts themselves, but of a compelling, subjective account of those facts. Beyond persuasive writing, objective analyses of the law implement narrative techniques—a strong structure, a clear, identifiable perspective, and a deliberate style and tone—to answer complicated legal questions. Oral advocacy, meanwhile, provides lawyers with an opportunity to find and sharpen their own voice, much like a novelist would. And even fact-gathering exercises like conducting client interviews or constructing a chronology double as the essential background research required to craft an airtight theory—and “storyline”—of the case. Remaining mindful of the link between legal writing and storytelling results in practical benefits for law students and lawyers, especially during periods of writer’s block, because it allows them to view legal problems through a new lens.
Legal writers can improve their stories by paying attention to their purpose and audience. If, in architecture, “form follows function,” then in legal writing, purpose follows audience. A helpful starting point for any legal writing assignment is to ask, simply, “Who is my intended audience? And why I am telling them this?” If your audience is an individual judge, then your purpose will often (though not always) be to persuade. If your reader is a supervisor who has asked you to analyze a legal issue, then your story should be informative and objective: a solution to a puzzle. Your specific audience and purpose will shape the form and style of your assignment—often down to the word choice. For example, if the conclusion to an objective memorandum begins with the words “the court should find…,” then the reader is likely to be confused, since the reader is not the court, and the memo’s purpose is not to persuade. It would be like a large crowd streaming into a performance of Hamlet, only to be greeted by a single actor on the stage reading Goodnight Moon. In both form and content, the story doesn’t fit the audience, and so there’s no chance that the story can fulfill its purpose (there may be a decent chance of refund requests in that scenario).
If your story’s purpose is to educate a supervising attorney on a thorny legal question, then, similar to what Melville accomplished in Moby-Dick, it’s your job to keep your reader consistently engaged in the minutiae of (often dry) subject matter. Moreover, you’ll need to find a way to do so without sacrificing a clear structure and tone, overshadowing the details of your analysis, or obscuring the import of your conclusion. (Balancing these concerns, along with the other subtle, oft-competing demands of written work product, is a bit like Captain Ahab hunting the white whale: a life-long pursuit, rather than a simple task to complete.)
On the other hand, if you are telling a persuasive story—through a brief, an oral argument, or even a carefully planned examination of a witness—you might focus more on your story’s plot and characters, both of which are essential to any effective narrative. A tightly structured story with a beginning, middle, and end follows a template familiar to almost any listener, and will therefore be easier for them to follow, understand, and ultimately accept as the more likely story. Equally important are your characters, with your client standing in for the tale’s protagonist. Consider how fully and precisely you draw each of these characters for your audience. Keep in mind that casting the other side as a one-note, two-dimensional villain does not usually make for an engaging—or believable—story. (There are exceptions to every rule, and Harry and Marv, the Home Alone robbers, may be an exception to this one.)
The connections between narrative and legal writing run deep. This post is meant only as a starting point to encourage lawyers and law students to consider the importance of these connections, and to explore ways to effectively incorporate storytelling into their practice. As Anthony Amsterdam and Jerome Brunner put it, “narrative—with all its pretensions to stand for “reality”—is the necessary discourse of the law, and…recognizing this necessity is an important step toward enriching the possibilities of storytelling in the legal process and guarding against its perils.”[1] Whether or not we recognize it as such, storytelling is an integral element of legal practice, and of legal writing in particular. Lawyers can harness the tools and possibilities of narrative to achieve a more successful and well-rounded practice.
[1]Anthony G. Amsterdam & Jerome Bruner, Minding the Law 113 (2000) (emphasis in original).