…and then, suddenly, it changed everything! By Andrew Mishlove on January 02, 2023

The art of storytelling is the primary skill of a trial lawyer.  The old paradigm that we argue cases in court is misleading.  We really tell stories in court. The adversarial system is a storytelling contest.  Facts, science, and logic inform our stories. They are necessary to our stories, but the story is the thing.  Yet, we should ask, “What is a story?”

A story is a narrative that resonates with the listener because of common experience, even common DNA.   A story may move a listener to change, but that change will only be consistent with the listener’s existing mindset.

A story has scenes. Scenes are narratives that occur at a specific time in a specific place. Thus, a scene invokes the physical senses.  A lawyer should try to present key parts of the case in scenes, as a filmmaker presents a movie.  Do it with vivid descriptive language, invoking the senses.

Don’t just say, for example, “On September 1, the defendant wrongfully fired the plaintiff.”

Instead, set a scene, “Billy Bates works in a dusty old brick building. He walks in coughing, thick dirt in the air visible in the sun that barely makes it through the grimy windows.  The dirt in the air is smelly.  On September 1, Joe Snide calls Billy into his office, up flight of stairs, through a door that keeps out the dust, down a hallway, another door, and then into the wood panels, thick green carpet and oak desk.  In that room sits Snide smoking a cigar.”

When the jury visualizes the scene, it becomes real to them.  They smell the dirt and cigar smoke.  It may be grammatically awkward, but it is effective to use the present tense.

A story has characters, like Billy Bates and Joe Snide.  Stories reveal character. It is unpersuasive to say, “Joe Snide was a greedy, dishonest man.”    Facts, not arguments, drive a narrative.  It’s better to say, “Billy walks up that flight of stairs, opens the first door, smells the cooler, clean air. He walks down the hall, opens the office door and steps in.  He hears the quiet and smells the cigar.

Snide says, “Bates, I’m telling you for the last time to quit complaining about the dust and your damn cough. I won’t warn you again.”   

The jury draws it own conclusions and is wedded to those conclusions far more fiercely than if you had simply told them what to believe.

This article is about the structure of a story. How do we structure a story? Do real life scenarios have plots in the same manner as fiction?   I struggled with this concept for years and I still do.  So, I need to thank the people who have helped me, from the lawyers at the National College for DUI Defense, and the faculty of the Trial Lawyers College.  Not the least of these is Maren Chaloupka, a Nebraska lawyer who introduced me to The Moth.  www.themoth.org.  The Moth is a storytelling organization whose method revealed for me a key component of the structure of a story.  Here it is.

Stories have phases. The introduction is where we meet the characters, and the conflicts are first suggested.   The middle, or rising conflict is where good meets evil, the boy loses the girl, or the trust is betrayed.   The climax is where evil is vanquished, and the boy gets the girl back again. And the denouement, or epilogue, is where we see the better world that is the result.

The Moth explains these phases a bit differently and especially clarifies the introduction.  The introduction is the world as it was, the way things were before “it” (whatever it may be) happened.  This world is usually flawed in some way, a train wreck waiting to happen.  Or it may be a blissful, but ignorant world, again before “it” happened.  The introduction ends with ‘it.”  “It” changes everything.  “It” is the start of the second phase, the rising conflict.  The Moth story structure goes from the ways things were, to when “it” changed everything, leading to the conflict, climaxing in resolution of the conflict, and ending with the different (better, we hope) world as a result.

All trials have multiple stories.  Characters each have their own stories, sometimes more than one. If we can see the moment when “it” happens, the thing that suddenly changes everything, we can discover a compelling narrative. We will know how to structure our trial from voir dire, opening, examinations and closing.   Finding “it” is the key to structuring the multiple stories in our trial.

I applied this method in a recent trial with great success.  My client, we’ll call him Peter, was a was an overprotected, depressed young man who had been through some struggles in life. His mental health was deteriorating.  He started pilfering and taking his mother’s anti-anxiety medications.  One day he had a very bad reaction and confessed to his parents.  A day later he was arrested for some very erratic driving, and the police saw his bag with his prescription psychiatric medications.  His blood test included the clonazepam that he illicitly taken.  It was a DUID case, driving under the influence of drugs.

I struggled to put Peter’s story together. I used a focus group, and they hated Peter for stealing his mother’s drugs.  They weren’t willing to get past that.  The bad driving was enough to generate 911 calls. An experienced state trooper believed he appeared to be under the influence.  I knew that my story had to address these bad facts head-on, but I was lost.

Yet, when I used the Moth method and looked for the moments that “it” changed everything, then things came into focus.  There several such moments, and I will describe a couple of them.

I knew that the biggest problem in the case was not the clonazepam level in Peter’s blood, which was not very high, but rather it was the fact that he stole the pills from his mother.  As I said, people hated that and were not willing to give him the benefit of the doubt.  When you have a very bad fact, the best way to deal with it is to embrace it.  I spent a lot of time talking to Peter about it, realizing that he would have to testify.  He described for me his deteriorating mental health and the ineffectiveness of his antidepressants. He told me how he would sneak into his parent’s bathroom and get into their medicine cabinet where the clonazepam was kept.   He described the night he took way too much.  He described laying in his bed, sick, and telling parents about it the next morning.

That was “it!”   He confessed to his parents the next morning!  “It” was the confession. “It” was the thing that changed Peter from an unsympathetic pill-popper, into a young man who had taken the first steps down the road of redemption!  That moment, that first step of redemption had to be a scene in the trial.

I set the scene for the jury. Peter was in his pajamas, still in bed early morning after a tormented night.  He heard his parents in the kitchen downstairs. He could smell the coffee, toast, and eggs. They were finishing breakfast, hurrying to get out the door to work.  Peter got up, walked down the stairs in his pajamas.  His parents were standing with their coffee, in their business clothes, about to leave.  “Mom, I’ve been stealing your clonazepam and I took too much last night! I need help.”   His parents put down their coffee, put down their briefcases, and they talked for several hours.  I invoked as much sensory detail as possible (being careful not to try the jury’s patience as well).

Now that the jury had visualized the defining moment of Peter’s confession and redemption, I hoped that they no longer felt the need to teach him a lesson that he had already learned. They were open to hearing the rest of the story!

Peter was driving terribly. He was all over the road.  We had an argument explaining why that happened, as he was texting at the time, and we had the text records to prove it.  Arguments, however, do not win cases; compelling narratives win cases.  I had an experienced state trooper who observed Peter and believed that he was under the influence of drugs.  How was I to deal with that fact? It would not be enough to simply attack the trooper. Cops usually win those attacks, as the jury loves a person in uniform.  I had to find “it.”

And “it” was right in front of my eyes; but I refused to see “it.”   When Peter was stopped the trooper naturally asked him if he was drinking or on drugs. Peter replied that he had only taken his regular prescriptions and showed him the bag with the prescription bottles.  Later, the trooper remarked to another cop that Peter had a bag of narcotics.   The parents were incensed that the trooper said that the antidepressants were narcotics.  I thought it was big nothingburger, the kind if insignificant detail that about which clients sometimes obsess. I viewed it as an annoyance.  I was wrong.  As I got past my own egotistical desire to control the case, I realized that the parents were right!   It was the key to the trooper’s “it” moment.   Not that the misnomer was good cross-examination fodder.  You don’t win by playing gotcha with the cop.  I realized, however, that this was just a regular texting while driving case, the kind every traffic cop sees every day.  Common as dirt.  That is, it was a garden variety texting case until the trooper saw “it.”   “It” was the bag of medication.  Then, suddenly, “it” changed everything!  The trooper stopped looking at Peter as a kid who was texting, but only saw him as a druggie.  After “it,” everything else was just confirmation bias.

In my cross-examination of the trooper, I set the scene to bring the jury to a place where they could visualize “it” happening.  The trooper was happy to oblige. It was not an attack on him.  From his perspective “it” simply explained the chronology of the investigation.  To the defense, however, “it” explained why the trooper’s view of Peter was tainted.   So, I lingered there.  A cold spring afternoon with heavy traffic on wide street lined with strip malls.  Peter shivering. He had never before been stopped by the police.   The trooper gladly described how texting while driving is a big problem and part of every erratic driving investigation.   He proudly admitted he was concerned about it from the start.  How could he not be?  He would often ask a driver about texting, or even ask for consent to see the phone.   It was on his mind this time, that is until “it” happened. Then he never thought about texting again. It was all about drugs from that moment forward.  Without attacking the trooper at all, I was able to get the jury to see Peter differently than did the trooper.

The Moth method is, admittedly, an artificial construct.  Reality does not fit neatly into preconceived categories.  Even so, there are often repeating patterns and paradigms.  When you are confronted with an immutable bad fact in your case, do not deny it, do not hide from it.  Embrace the bad fact and look for that moment when “it” happens.  “It” might be the thing that changes the bad fact, like Peter’s redemption, or “it” might be the moment that puts the bad fact into your defense theory, like the bag of medications.    If you look for “it,” there is a good chance that you will find “it.”

When you find “it,” that moment in your story where everything changed, you have found the story and you will know the scene that you need to set. These are the moments in trial where you should linger, using the power of storytelling, getting to the jury to visualize the key scenes.

“It” gives you a moment when you can say to the jury in closing, “…and then, suddenly, it changed everything!”  And they will nod their heads with you!

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Andrew Mishlove and Lauren Stuckert

Mishlove and Stuckert, LLC Attorneys at Law

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