The Perfect Brief Part 7 - Telling the Judge a Story

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Stories take a judge to the heart of our dispute. They let the judge see our client’s plight, empathize with our client, and want to decide for our client. By telling a story, we say to the judge, “Your Honor, here is what this case is really all about.”

Although storytelling is a simple concept, litigators sometimes resist telling stories because of some notion that “stories” are frivolous. But think of it this way: No story, no issues; no issues, no case.

Tell the Story First

This is the concept many litigators don’t understand and why so many briefs are mind-numbingly dull: we usually open our briefs by explaining things: statutes, provisions, the standard for summary judgment. As a Ninth Circuit judge once said: “The law doesn’t matter a bit, except as it applies to a particular set of facts.” That “particular set of facts” is our story, and if we are to engage the judge, we must open with that story.

A Story Provides Context for Applying the Law

In the case below, the lawyer opens by explaining the Growth Management Act:

        This case hinges on the meaning of what may be the Growth Management Act’s most fundamental and far-reaching mandate – the Essential Public Facilities (“EPF”) provision that prohibits local governments from precluding the siting of EPFs.

If she had told the judge a story instead, she could have provided the context for why municipalities must cooperate to build sewage treatment plants—under the mandate of the GMA:

        In the 1950s, sewage generated by the people of King, Pierce, and Snohomish Counties ended up at 25 small treatment plants. Some communities pumped raw sewage into Lake Washington. Each day, 40 million gallons of untreated wastewater spilled into Puget Sound.

What Is a Story?

A story is about people doing things or having things done to them. Interpreting a statute is not a story. Alleging a wrongdoing is not a story. Describing a principle is not a story. People generating and pumping raw sewage into a lake and spilling wastewater into a sound are stories.

In the condemnation case below, the judge need not read a metes and bounds description of the property before she hears the story of what happened to the property. Nobody does anything in a metes and bounds description. Instead of opening with the description, we could engage the judge with a simple story:

        In July of 2015, Kensington Investments purchased 27 acres west of Ft. Lauderdale for $2,000,000. In August of 2017, Broward County condemned the property and offered to compensate Kensington with $5,000,000. Although Kensington had done nothing to improve the site, the company claimed that in two years the property had appreciated 650% to $13,000,000.

In three sentences of story, the judge already wonders how any plot of land could increase in value 650% in just two years, which immediately shifts the burden to Kensington.

How Does Storytelling Differ from Explaining?

In a story, time passes. In an explanation, time stands still. At its deepest level, a story comprises sentences that convey the passage of time. Telling a story can be as simple as this:

        In August, Proud Rhodie contracted with LMK to purchase silicon for $130,137.30. Ten days later, LMK delivered the silicon.

“Contracting” and “delivering” require time, so we’re telling a story. If we open our brief by explaining, time does not pass, and we don’t engage the judge, as we see below.

Reading a Story Engages a Judge

Note that in this Position Statement, not only does the lawyer open with an unnecessary formal sentence—then present the other side’s case—but also time does not pass; nothing moves:

Dear Ms. Horowitz:

        This firm represents Respondent Pericles Packaging in the above referenced matter. Kindly accept this Position Statement as Pericle’s explanatory response to the Verified Complaint filed with the New York Division on Civil Rights by Adeola Okafor.

        Complainant, Adeola Okafor alleges that she was discriminated against by Pericles based on her race (African American) and her national origin (Nigerian) in violation of the New York Law Against Discrimination (“NYLAD”) (N.Y.S.A. 10:5-12a) and in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Complainant’s claims are totally without merit.

The Three Rules of Storytelling

Let’s try another way to open the Pericles brief by telling a story that helps the judge appreciate our client’s position. This example illustrates all three rules

First, open with one fact that drives the story

Engage the judge from the beginning. Instead of opening with a formal sentence, then the other side’s case and a weak conclusory statement—as the Pericles lawyer does above—open with a story and a sentence like this to establish a tone advantageous to our client:

        In July 2018, Complainant Adeola Okafor, a shipping clerk for Respondent Pericles Packaging, shipped a customer’s 10-case order “Overnight.”

Already the judge senses that something went awry, and it was probably the Complainant’s fault.

Second, add information to move the story forward

Keep telling your story exclusively with facts—no editorializing—letting the story build, until the judge wonders about the veracity of the Complainant’s accusations. The next two sentences of Pericles might be something like:

With each order Okafor shipped, she first had to check the customer’s master shipping instructions. That customer’s instructions authorized “Overnight” shipping only if the order was for five or fewer cases; Okafor had failed to check the instructions, and the customer refused to pay for the overnight shipping.

Now the judge knows that the Complainant’s carelessness has cost Pericles money, and the judge reads on because he wants to know the degree of her carelessness.

Third, start anywhere along the story line that will grab the judge’s attention

We need not tell a story in chronological order. We can pick any aspect that supports our client’s case and begin there, then go back and fill in details. (See Part 6 for opening with a fact that is “interesting, relevant, and favorable.”) This technique works in fine literature, good film, and well-written briefs: rather than open with the day the contract was signed, open with the day the contract was breached in some dramatic fashion and come back to the day it was signed. In Pericles, we’ve opened with one example of the Complainant’s carelessness; later in the brief, we can tell the judge what the company does and how long the Complainant has worked there. But in the last two sentences of our opening paragraph, we finish the point with:

Because of Okafor’s mistake, Pericles had to absorb a loss of $2,322.47. Pericles has a list of 14 similar examples of Okafor’s carelessness resulting in losses for the company.

In one paragraph of storytelling, the judge now knows that the Complainant has been consistently careless and cost Pericles thousands of dollars to cover her mistakes. How can the Complainant now deny her own role in her dismissal?

Conclusion

By telling the judge a story at the beginning, we engage him in our client’s case, provide him the context to apply the law, and take command of the case from the first sentence. At the outset, we point the judge immediately toward the conclusion we want him to reach.

About the Author 

Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List. 

Our Story

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WordRake founder Gary Kinder has taught over 1,000 writing programs for AMLAW 100 firms, Fortune 500 companies, and government agencies. He’s also a New York Times bestselling author. As a writing expert and coach, Gary was inspired to create WordRake when he noticed a pattern in writing errors that he thought he could address with technology.

In 2012, Gary and his team of engineers created WordRake editing software to help writers produce clear, concise, and effective prose. It runs in Microsoft Word and Outlook, and its suggested changes appear in the familiar track-changes style. It saves time and gives confidence. Writing and editing has never been easier.