The trial advocate as storyteller: The art and science of persuasion

• Author: The Honourable Todd L. Archibald and J. Manuel Mendelzon
• Pages: 11-40

11

g WINTER 2012

e ial acae as yelle:

THE ART AND SCIENCE OF PERSUASION

THE HONOURABLE TODD L. ARCHIBALD

AND J. MANUEL MENDELZON

Children, only animals live entirely in the Here and Now.

Only nature knows neither memory nor history. But man

– let me oer you a denition– is the story-telling animal.

Wherever he goes he wants to leave behind not a chaotic

wake, not an empty space, but the comforting marker-buoys

and trail-signs of stories. He has to go on telling stories. He

has to keep on making them up. As long as there’s a story, it’s

all right. Even in his last moments, it’s said, in the split

second of a fatal fall– or when he’s about to drown– he sees,

passing rapidly before him, the story of his whole life.

~ Graham Swift, Waterland1

he most persuasive litigator is a compelling storyteller. This

oft-repeated maxim may seem trite, but many litigators consider

this principle to be pertinent only to the preparation of a jury

address and not to all stages of their litigation. In reality, a well-con-

structed and coherent case narrative will resonate with conviction from

the beginning of the case to its successful conclusion. Many litigators

fail to adopt a story- or theme-centred approach to litigation. They do

not consider the strengths, weaknesses and structure of their case’s

1 (London: William Heinemann, 1983) at 53.

12 • The Honourable Todd L. Archibald and J. Manuel Mendelzon

narrative until it is too late. These lawyers all too often end up, as Ste-

phen Leacock once wrote, “[riding] madly o in all directions.”2

This article argues that the adoption of a story- or theme-centred

approach to litigation will fundamentally change the way a case is pre-

pared and presented. Story-centred litigation will assist in achieving

the following important goals: conducting an eective examination for

discovery, choosing what evidence to lead at trial, determining how to

attack an opponent’s case, engaging in eective settlement negotiations

and, of course, presenting a persuasive argument to a judge or a jury. An

acute awareness of the kind of story a particular case tells will provide a

coherent framework for making eective and ecient litigation strategy

decisions.

Similarly, applying narrative and storytelling techniques to oral advo-

cacy will provide the key to successful courtroom presentations. The

principles discussed in this article will assist litigators in creating simple,

clear and credible stories, where strengths and weaknesses have been

synthesized, characters have been well developed and strong themes

have been drawn to the forefront through point-rst advocacy.

A simple yet memorable example from the children’s fairy tale “Gol-

dilocks and the Three Bears” illustrates the power of using a story- centred

model. Consider what the competing narratives would be if the Three

Bears had sued Goldilocks for trespass. They might adduce the following

evidence: “We were out hunting, and when we came home we couldn’t

believe it– our house was ransacked! It was destroyed. Everything was

turned upside down, and all of our food was eaten.” Goldilocks, on the

other hand, might present a competing narrative: “Your Honour, I was

desperate. I was lost. I was hungry. I was in the woods. I came upon this

house and had to break in. I was dying of thirst and starving.”3

Each story presents a familiar and relatable theme: in one, we see

a family’s peace and routine destroyed by a criminal intruder; in the

other, we see a young victim seeking safety and assistance after endur-

ing signicant trauma. Both sides present narratives that contain strong

elements of theme, plot and structure. Both stories have the capacity to

resonate with a legal audience or decision maker who will try to help the

2 Nonsense Novels (Montreal: Publishers’ Press, 1911) at 27.

3 Justice Todd L Archibald, “The Art of Persuasion: From the Boardroom to the

Courtroom” (2007) 24:2 TM Cooley L Rev 169 [Archibald (1)].