This is the ninth instalment of Arguably the Best, our year-long series on improving your litigation skills.
During my articling year I spent lots of time watching court. There is nothing like seeing different lawyers with different styles to make one think about what kind of advocacy works best. Some were charismatic and flashy, others cold and technical, and too many were dull, disorganized, and forgettable. For me, the most compelling were the storytellers.
The importance of storytelling struck me while observing a senior criminal lawyer address a jury. He didn’t pound the table. He didn’t bore the jury with irrelevant details. Instead, he set out a simple narrative in a confident and reassuring voice. The facts tumbled from him slowly but effortlessly. In an understated way, he conveyed his passion for the case with rhythm and intonation. Listening to him reminded me of the feeling I had as a child hanging onto every word of a story, not wanting it to end.
The importance of storytelling in a jury address is obvious. But storytelling should permeate all aspects of advocacy starting with pleadings. Reading pleadings can be painful. We learn to draft pleadings in civil procedure class in law school and the focus is, quite naturally, on the technical requirements of the Rules of Court and the elements of the relevant causes of action. Marks aren’t given for good storytelling.
The first pleading I drafted in practice was returned to me by the assigning lawyer. He told me there is no rule that says I have to start my pleadings with dull descriptions of the parties. “Why not start with an introduction?” he asked. “Tell the reader (i.e. judge) what the story is upfront so that she can put all of the facts into context as she reads them. Remember, this is the first chance you get to tell the judge what the case is about.”
The other aspects of the legal process that follow are no different. Whether you are writing a motion brief, an appeal factum, or presenting a closing argument at trial, you need to reach beyond the dry facts and legal tests to present a story. A story or narrative is critical because it is one of the dominant ways people make sense of the world around them.
Judges and jurors are no different. They take the facts they find in evidence and organize them to fit familiar story types. Perhaps more importantly, they fill gaps in the evidence based on their personal experiences and stories they have heard or read. A good advocate will give the judge or jury the narrative that will frame their view of the evidence.
Too often lawyers think that argument is the essence of oral advocacy. On any day in court, you will see lawyers arguing with each other and with judges. There are two normal human reactions to arguments: fight back or tune out. Neither helps a lawyer win a case. The true essence of oral advocacy is, once again, storytelling. If you tell a good story and you tell it well, the judge or jury will pay attention. Judges who are engaged by a story are likely to ask questions out of interest rather than hostility.
Good oral storytelling takes more than having a good script. A good storyteller has to speak slowly, clearly, and, sometimes, not at all. Pauses or breaks help an audience digest important points. Passion for the story should be communicated through rhythm and changes in intonation. Nothing is worse than listening to a narrative in monotone.
Oral storytelling comes naturally to some people. But for most of us oral storytelling can be difficult. The good news is that with practice everyone can get better. The problem for many lawyers is they don’t know how or where to practise. The answer to this conundrum presented itself when I had children.
Children are a ready-made audience with an insatiable demand for stories. Children are also a challenging audience. They will fidget and interrupt you just like judges. And if you want to simulate appearing in front of the Court of Appeal, try reading a story to three kids at the same time. Experience has taught me the more of yourself you give to telling a story to children, the more likely you are to enjoy their undivided attention. Importantly, children won’t be critical or judgmental if you experiment with your storytelling by changing your voice or introducing pauses or otherwise mixing up the storytelling experience.
So the next time that your son or daughter or niece or nephew asks you to read The Gruffalo yet again, think of it as a chance to practise your advocacy skills. Read the story with passion and rhythm. Let your voice rise and fall. And pause at the scary and exciting parts. The reaction will make you feel good and the experience might even make you a better lawyer. “A mouse took a stroll through the deep dark wood. A fox saw the mouse and the mouse looked good. . . .”
Colin Feasby is a corporate-commercial litigation partner at Osler Hoskin & Harcourt LLP’s Calgary office.