People have different communication styles
One thing I’ve learned after almost 20 years of marriage is that everybody has a different communication style. Let’s take the time my lovely wife was almost caught in the crossfire of a Houston highway gang shootout. I don’t remember the exact conversation, but it was probably something like this:
Me: Hi, honey, how was your day?
Her: Oh my goodness, it was crazy. You’ll never believe what happened.
Me: What happened?
Her: Well, you remember the kids had appointments at the orthodontist today, right?
Me: Right [I didn’t really remember]
Her: Their appointment was at 3:00, so we left around 2:00 and got on I-45, and then . . .
Time out. If you’re like me, you may already feel a little impatient. You just want to know what happened! You don’t want to be kept in suspense.
If this had happened to me, the conversation would be more like this:
Wife: How was your day today?
Me: It was good, but when I was driving to work I got stuck in a police chase. The guys the police were chasing pulled over and pointed their guns out their windows! I was right in the middle of it. It was scary, but luckily I was able to maneuver around the police cars and drive away unharmed.
See how I got right to the point and summarized what happened?
I used to wish my wife would do that too, so we could get to more important things, like watching Monday Night Football. But eventually I realized that’s just not her style. And now I actually enjoy the way she turns the day’s events into a story.
She’s a “storyteller.” I’m a “teacher.” She’s good at telling a story that keeps your attention. I’m good at explaining complicated facts or legal issues in a simplified way that teaches the audience the essential things they need to know. At least that’s what I wrote in my website profile.
But what’s the best style for the courtroom?
Trouble is, I’m a trial lawyer, not a teacher. Is my style right for the courtroom? It seems like most great trial lawyers are known as master storytellers. And good storytelling has tremendous psychological appeal. If you can frame the facts of your case as a compelling story of right and wrong, you may get the judge or jury on your side before the first witness even takes the stand.
Part of what makes storytelling effective is the suspense of not knowing what’s going to happen. I discovered a great example of this recently on YouTube. The video was G.E. Smith talking about playing in Bob Dylan’s band.
Those of you of a certain age will remember G.E. Smith. In the early 90s my college buddies and I religiously watched him fronting the Saturday Night Live band each week. (I mean, other than all the Saturday nights when we were dating extremely attractive coeds, of course.) We always got a kick out of seeing the different guitars G.E. would trot out. And if you’re really old, you may even remember him from those early Hall and Oates videos on MTV.
Anyway, in this video G.E. Smith tells the story of how he got to tour with Bob Dylan, one of his childhood idols. Before you read the rest of this, watch the video here.
Did you watch it? You saw that playing vintage guitars isn’t G.E.’s only talent. He also has a knack for storytelling. I think there are two key elements: he keeps you in suspense about what happened, and there’s a point at the end.
It wouldn’t be quite the same if G.E. had my style. If he just wanted to “teach the material,” he might say something like this:
I got the opportunity to tour with my idol Bob Dylan because at the New York studio audition, which I thought at the time was just an informal jam session, I knew one of his more obscure early songs called “Pretty Peggy-O.” Bob was impressed enough that he asked me to play guitar in his band. I toured with him for several years while I was still doing Saturday Night Live, and it was a great experience.
In my defense, this version gets right to the point and doesn’t waste words. But it’s also kind of dry. So do I need to change my style to be more engaging in the courtroom?
I think it depends. The opening statement in a jury trial is an obvious opportunity to tell a story. But there are many courtroom situations where storytelling is not a good idea.
For example, an oral argument in an appellate court is not the right venue for telling a story. Sure, you want to present key facts in a way that supports your legal argument, but you don’t want to rehash underlying facts or details of the trial. The judges have already read the briefs. They want you to focus like a laser on the difficult issues they have to decide.
Even in the trial court, storytelling isn’t always the best strategy. Let me give you an example based loosely on cases I’ve handled.
Let’s say I’m defending against a motion for a temporary injunction to enforce a non-compete. The plaintiff’s lawyer starts off the hearing by telling the story of what happened: Mr. Employee came to work for the company, the company gave him leads, confidential customer information, and training, Mr. Employee decided to leave, and then he jumped ship to a competitor, hoping his clients would follow.
That’s a pretty typical approach. Of course, the plaintiff’s lawyer is going to tell the story in a way that emphasizes the factual grounds for granting an injunction.
When it’s my turn to talk to the judge, one approach would be to tell the same story, but from my client’s perspective. “Your Honor, about nine years ago, my client went to work for ABC Company and started building his client base from nothing, using only his laptop and hard work . . .” You get the idea.
But I don’t do that. Instead I go right to my strongest points:
Your Honor, you’re not going to hear any evidence today that a single client has moved its business from ABC Company to my client’s new employer. So there is no imminent harm whatsoever, and any harm that might occur could be adequately compensated with damages.
This can be an instant momentum changer. If I’m lucky, the judge immediately picks up on my argument and says to the other lawyer, “wait a minute, is it true that at this point your client hasn’t lost any customers?” And so the balance shifts.
You see, the longer I’ve practiced in trial courts, the more I’ve learned the value of leading with your best stuff and getting right to the point.
But I still like my wife’s stories.
Zach Wolfe (firstname.lastname@example.org) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.