The Importance of Storytelling in Appellate Advocacy
The ability to narrate a compelling story is a useful skill in law, just as it is in business. While it has long been recognized, particularly in the litigation space, that the best lawyers are great storytellers, over the past decade Legal Storytelling has made its way into law school curricula and has been the subject of academic conferences in the U.S. and abroad. Beginning in 2007, a movement known as “Applied Legal Storytelling” was launched when a group of legal academics from around the world gathered in London to discuss the uses of storytelling in the law. While most trial lawyers would characterize themselves as storytellers, the importance of storytelling in appellate advocacy cannot be overstated. From drafting a persuasive brief to making a strong presentation at oral argument, narrative elements - including character, setting, theme, and plot - are key to the success of an appellate practitioner. After all, effective storytelling goes hand in hand with persuasion.
Appellate Briefs Should Include Both Logic and Story
Fundamentally speaking, a lawyer’s job is to tell a story; the client’s story. Whether in the setting of a trial, a contract negotiation, preparation of a will, or an appeal, the elements of storytelling come into play. As with any good story, there are compelling characters, an interesting plot, and central themes. There is conflict and ultimately a requested resolution - the client’s “happy ending.”
The goal of any appeal is to convince the court that one side of the story is the right one. Most litigation comes down to a “battle of the narratives,” with the best “story” winning. Thus, in addition to setting forth a logical analysis of the law, an appellate brief should also tell a story. Narrative elements such as setting, character, and theme should be woven into both the factual presentation and the legal argument. The statement of facts should read like a good story, with the setting and characters being introduced and the conflict unfolding. Quotes and testimony excerpts should be included, so the parties to the case and the witnesses can speak for themselves, much like compelling dialogue in a screenplay. The legal setting, meaning the legal and regulatory framework at issue, should be methodically laid out. The plot develops through the legal argument, with the ending of the story - the client’s requested resolution of the case - coming as no surprise. In other words, if the appellate attorney has told a good story, supported by logical legal analysis, the court should know exactly what the client is asking for and why.
Legal briefs have a reputation for being dry, even boring. Employing storytelling techniques will bring an appeal to life. Dramatic literary concepts such as exposition, rising and falling action, climax, and denouement can bring life to an otherwise dull set of facts. Furthermore, an appellate attorney who tells a compelling and believable story, well supported by legal authority, invariably gains credibility with the judges hearing the case.
Like a Good Story, an Appeal Should Have a Central Theme
The judges deciding the appeal will want to know, in the clearest terms, what the case is about. With that in mind, a successful appellate brief identifies and enunciates the narrative at the heart of the case as early as possible. Once the theme of the case is set forth, the story is able to unfold in a more logical and coherent way. While the plot (the legal argument) may twist and turn, the case always comes back to its central theme. Moreover, having a clear focus as the story is being told makes it all the more compelling to hear, and less prone to distraction, which, as anyone who has suffered through a meandering tale with no apparent point can attest to, can ruin a good story. The same is true of an appellate brief or oral argument that lacks a central theme or focus. Most judges prefer an appellate brief that is written as “an essay with a clear train of thought” over a brief written as “a repository of all the information that a curious judge might want to know about.” (Garner, Judges on Briefing: A National Survey, 8 Scribes J. Leg. Writing 1 (2002)).
Applying storytelling techniques to appellate practice involves looking at the big picture of the case and identifying an overarching theme, then weaving that theme throughout the brief, in the factual summary, as well as the legal argument. This is a valuable exercise for any appellate practitioner, as a story with a clear theme, in which everything that happens relates back to the theme, makes for a compelling read.
The Human Aspects of a Controversy Should Not be Forgotten
All legal disputes involve some sort of human conflict. While appellate judges do not want to feel emotionally persuaded or manipulated, they do want to hear the client’s story. More important, appellate advocates serve their clients well when they give the judges a reason, on a human level, to decide cases in their favor. Where appropriate, presenting an emotional appeal, well grounded in law and logic, is the best way to capture the attention of appellate judges. Subtly portraying the client as the protagonist of the story, and the opposing party as the antagonist, is another way to engender sympathy using storytelling techniques.
The clients themselves should be as much a part of the story as the legal analysis. The reader (the court) wants to know how the conflict arose and how it can be, or should be, resolved. Approaching an appellate brief as a story about people (whether individual or corporate), rather than solely as a piece of technical writing, is sure to make it more interesting to its audience, and therefore, more persuasive. A study done by law professor Kenneth D. Chestek, a frequent writer on the subject of legal storytelling, concluded that “stories are indeed persuasive to appellate judges.” (Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, Journal of the Association of Legal Writing Directors, Vol 7, No. 1 (2010)).
Verbosity Can Kill a Good Appellate Story
As is the case with storytellers, some lawyers fall into the trap of saying too much. With effective storytelling, it is the quality, not the quantity of words, that counts. Often, less is more. While the temptation on appeal may be to overinclude facts and to present every possible argument, regardless of its strength, material that is unrelated to the story being told will only serve to distract the reader. Indeed, a skilled appellate lawyer should be able to distill the voluminous record down to a concise presentation that ends well short of the court’s page limitations.
An appellate brief that tells a story, using narrative techniques such as theme, character, setting, and plot, to present the facts and apply the relevant legal framework, is sure to resonate with the court on both an intellectual and an emotional level. In addition to being a powerful tool of persuasion, storytelling in appellate advocacy brings a level of humanity and authenticity into the legal process, which in the long run is certainly a worthwhile goal.
Let An Appellate Attorney Tell Your Client’s Story
If you are contemplating an appeal following a loss at trial or on a dispositive motion, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.
Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.