Storytelling reveals
meaning
without committing the error of defining it.
Hannah Arendt (Men in Dark Times, 1968)
Advocates are, first and foremost, storytellers. Courts depend on us far more for our presentation of the facts than the law, which we can assume they know "something" about.1 Judges are well equipped to chart any number of routes through a problem. Telling a persuasive story helps them decide why to head in a given direction (and why our client should succeed). Presenting facts persuasively helps sway our human audience, whose primary objective is to do justice between the litigants in front of them.2
Persuasive storytelling encourages reflection, invites empathy, and provokes judgment. It does this through:
- Themes
- Simplicity
- Fairness
- Subtlety
Persuasive stories are thematic.
Your facts should be built around the themes of your client's story. These themes will be tied to the legal issues in your case, as well as the broader archetypes you want to invoke.3 Echoing public policy principles, rights narratives, or character tropes all help give colour to our bare facts. It also makes them more emotionally charged and compelling. A neighbourly dispute is about more than just competing land surveys, it's about a retired public school teacher who has been prevented from breaking ground on his dream vacation home.
Building around themes means using them like a musical key signature that you want to sustain throughout your story. Decisions like how to describe certain events, contexts, or characters, or what facts to emphasize (or deemphasize) should all be driven by what reinforces or competes with your themes.
Persuasive stories are simple (or at least accessible).
You never want your audience to be "wrestling with your prose" instead of "soaking up" your meaning.4 High art and complexity can be engaging in the right circles, but your job is to entice not challenge your reader.
On a micro-level, simple language, short sentences, and a conversational tone will keep your reader moving without distraction. Lists and bullets help simplify related facts by erasing the need for connecting grammar. Scrutinize your punctuation. Challenge every comma to be a period. Drop (nearly) every semicolon. Seriously scrutinize that em-dash. Avoid excessive defined terms, since every capital letter distracts our eye and invokes an inventory that pulls us away from the words on the page.5 For complex cases where defined terms are unavoidable, consider appending a glossary so that they can be referenced in one easy location.
On a macro-level, keep your narrative easy to follow. Most stories lend themselves to being told chronologically. You've already framed your position and the issues with an overview, so best to begin at the beginning when summarizing the facts.6 Use headings and subheadings to signpost where the reader is headed along the road. Refer to characters by their names or roles in the story (landlord and tenant; employer and employee) rather than just party designation within the litigation (Third-Party Defendant, Plaintiff by Counterclaim).7
Persuasive stories are fair.
Our credibility, and the credibility of our stories, depends on trust. When presenting the facts, we need to be "scrupulously accurate", "nothing weakens trust more than overselling {...} nothing instills trust more than facing up to your weaknesses."8 But telling a fair story doesn't mean being exhaustive. Our job is to summarize the facts relevant to the issues, not throw in the kitchen sink and ask the court to sort it out.9 Be selective when including excerpts of actual evidence, as these take up valuable space and disrupt the flow of your carefully crafted narrative.10
When deciding what facts make the cut, or how much time to spend on them, zoom out. Does this fact help or hurt our legal arguments (or the opposing side's arguments)? Does it enhance or conflict with our narrative themes? When referencing negative facts, consider ways to deflate them. Contextualize: emphasize the circumstances surrounding the negative fact so it appears less extreme. Juxtapose: contrast the negative fact with a related positive fact, or hold it up against a worse competing negative. Neutralize: use passive language to soften and depersonalize the negative fact. Deflect: point out directly why certain facts are irrelevant to the issues.
Persuasive stories are subtle.
"Readers hold more firmly onto ideas they develop themselves than ideas thrust upon them."11 This is just as important to factual storytelling as it is to framing our legal arguments. You want your reader to discover your themes and the moral colour of your facts on their own terms. Your facts need to speak for themselves. Avoid hyperbole and resist the temptation to super-charge your prose with adverbs or adjectives. This flavour text, which we often assume is merely for emphasis, serves as moralizing commentary that tells our reader how they should interpret the facts.
We want the court to arrive at the end of our story with two things in mind: (i) all of the essential facts, clearly understood and easily accessible; and (ii) a sense of the moral colour of our story that they have derived for themselves. This will not only equip them with the building blocks needed for their chosen outcome, but will also predispose them to preferring the path set out in our arguments that follow.
Footnotes
1. "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999).
2. "What Persuades (Or What's Going On Inside the Judge's Mind)". The Honourable John I. Laskin J.A., Edited Paper from lecture given on November 21, 2003 at the Advocates' Society Fall Convention.
3. See Linda L. Berger and Kathryn M. Stanchi. Legal Persuasion: A Rhetorical Approach to the Science. Routledge (2018), pp. 41-49 for a compelling demonstration of how different archetypal themes, characters, and plots interact and sometimes compete with one another.
4. "Some thoughts on legal writing and written advocacy". The Honourable David Stratas. Federal Court of Appeal (March 8, 2021).
5. See Neil Guthrie. Guthrie's Guide to Better Legal Writing, 2nd Ed., Irwin Law Inc., 2021, pp. 18-21 for discussion on how juggling too many defined terms, concepts, or events obstructs rather than enhances comprehension in complex stories.
6. Or, if you are keen to lose, plunge in "roughly two-thirds of the way through" and "never begin at the beginning" ("The Wrong Stuff: How to lose in the Court of Appeal". The Honourable Justice Marvin Catzman. The Advocates' Society Journal, August 2000, p 4).
7. "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999).
8. "What Persuades (Or What's Going On Inside the Judge's Mind)". The Honourable John I. Laskin J.A., Edited Paper from lecture given on November 21, 2003 at the Advocates' Society Fall Convention.
9. See R.S.J. M. Edwards' recent criticism of this approach in the motions context in Lepp v. The Regional Municipality of York, 2022 ONSC 6978.
10. See Kenneth L. Campbell. "Preparing the Factum (Section 10.5)" Federation of Law Societies of Canada, National Criminal Law Program, University of Ottawa (July 2002), pp 6-7.
11. "Some thoughts on legal writing and written advocacy". The Honourable David Stratas. Federal Court of Appeal (March 8, 2021).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.