Courtroom Stories

Andrew Deiss

By Andrew Deiss

Not long ago, philosophers believed that the mind and the body were wholly distinct; economists believed that humans were strictly rational actors; and scholars and consultants relied very heavily on mathematical models in explaining how people make decisions. Today, some of that thinking seems more like fairy-tale than science. That’s because it is. Increasingly, philosophers stress that the embodied nature of the mind necessarily drives our thinking; behavioral economists are demonstrating how poorly people make decisions (even those regarding their own best interests); and many scholars are concluding that when it comes to persuading people, stories are simply better than rhetorical argument.

Studies have confirmed that adults process information more quickly, comprehend better, and have better recollection through stories than through argument. Stories transport listeners, diminish counterargument, disarm scrutiny, illicit empathy and inhibit psychological resistance. As we have all experienced, stories can suspend disbelief. In story, belief is the default state.

Science suggests that rhetoric rarely changes opinions or beliefs. Stories do. In part, this may be because through story listeners often “tell” part of the narrative themselves. Listeners fill causal gaps in stories with inferences drawn from their own experiences, making the story more credible – at least in their own minds. In fact, fMRI studies show that when we are engaged in story, our brains look more like we are participants in the story than listeners. As some writers have put it, we are simply hard-wired for story.

This is all well and good, of course. The challenge is how to actually use stories in litigation. It is hard enough for many of us to even come up with a good story. And, lawyers face unique obstacles. For instance, fact-finders often begin with the belief that a trial lawyer is trying to sell them something. Studies show that when people are aware that the story is intended to persuade them, they are less likely to believe it. Second, lawyers are presented with a set of facts and are not at liberty to exercise much creative license with those facts. Third, there is this thing called the law. The rules of evidence, elements of causes of action, and the pesky judges who enforce those rules can interfere with compelling storytelling. Fourth, sometimes the facts of a case are just plain dull. Acme Co. entered into a contract with Zenith Co. to buy widgets. Acme paid Zenith. Zenith did not deliver. Acme sues. Are you on the edge of your seat? If so, you should get out more. Finally, even if you do somehow manage to make a good story out of Acme v. Zenith, there is some other lawyer who is itching to get up and undo your good work.

There is not sufficient space to adequately address any, much less all, of these obstacles. However, perhaps the most common advice offered by experienced lawyers is to do your best to convince the fact-finder that you act and speak with integrity. A fact-finder must learn as soon as possible that you are not there to trick them. One way to do this, as was suggested to me by a seasoned lawyer – is to actually have integrity. Apparently, after sizing me up, he went on to say: “If that proves to be a challenge, at least try not to overreach.”

If a fact does not clearly establish or prove something, don’t say it does. If there is a dispute of fact, acknowledge there is. Conclusory words or phrases – ones that tell the fact-finder what to think – engender skepticism and resistance, or, as studies suggest, are simply disregarded by the listener.

The same goes for flowery, effusive language and legalese. Avoid it.

“The perpetrator savagely and remorselessly beat the victim with a deadly weapon – to wit, an axe.” That statement is probably not as effective as: “Lizzy picked up the axe, raised it and brought it down upon her mother’s head. Then, she did the same thing 39 more times.” Those are facts from which (one would hope) the listener would reach his or her own conclusion that Lizzy acted savagely and without remorse. But, the facts better be rock solid. If it turns out that Lizzie’s mother was actually her stepmother, the axe may have been a hatchet, but no one was sure if the actual murder weapon was found, and that Lizzie’s stepmother was struck in the head 19 times (not 40), you may have overreached. After all, Ms. Borden was acquitted.

I have asked many excellent attorneys for their opinions on these issues. One such suggestion is that when it comes to persuasion, less is often more. Accordingly, I will end here. Except to say, I think it is worth asking other lawyers about the use of storytelling in the practice of law. You may not learn anything, but at least you will hear a lot of good war stories.


Andrew Deiss, the principal at Deiss Law PC, handles business litigation, criminal defense and personal injury cases. Prior to becoming a lawyer, Andy attended Yale University, taught high school history in upstate New York, played professional hockey in Europe and earned a graduate degree in legal history and a Juris Doctor from the University of Chicago. Andy founded Deiss Law in 2012. He now focuses mainly on business competition, including business torts, IP, antitrust, and non-competition and non-solicitation disputes. Andy is an affiliated professor at the University of Utah, a mock trial coach for West High School and a teacher at the National Institute of Trial Advocacy. Further information can be found at Deisslaw.com.