I have purposely avoided writing about narrative and its importance for years since the industry of jury consulting is oversaturated with folks who advise, “You gotta tell a story.” While true, this advice never seemed helpful to me as it seemed akin to self-help books that tell you just to work harder, be happier, or visualize your goals. Too many times, I have seen attorneys embrace the advice to tell a story, only to struggle with what that actually means as they prepare for trial. Afterall, it is not like attorneys get to sit around a campfire with jurors and tell a story any way they want. There are rules and procedures, none of which are conducive to storytelling (as we typically envision it) in the courtroom.
However, as we think and talk about our “post-truth” world, it is probably time to revisit story and its role in our lives. When you try to answer the question of what defines being human, story lies at the center. You could argue that humans are nothing more than collections of stories strung together to draw conclusions about the present and likely future. In fact, story defines our existence in ways that we often take for granted and don’t even notice on a day-to-day basis. You cannot be a truly good storyteller without understanding and appreciating the limitless boundaries of how story defines our very existence, not just in some sort of metaphorical way, but in our minute-to-minute understanding of who we are and how we relate to and understand the world around us. There is no existence outside of story. Our self-identity is nothing more than a story we tell ourselves about who we are, which is often wrong in ways we don’t appreciate. Perhaps that is why our loved ones often seem to know us better than we know ourselves. The world around us is also nothing more than a collection of stories we tell ourselves about how the world works. That may sound like big picture, armchair philosophizing, but it is much more practical than that.
Consider David Foster Wallace’s famous example of the car that cuts you off in traffic. You’re driving from work and some other driver comes flying down the road and cuts you off. “What a jerk!” you say to yourself. You shake your head at this reckless and arrogant idiot who thinks he is so much more important than everyone else. Without even realizing it, you have told yourself a story. You have taken a single event and built a narrative around it by creating a character and giving that character traits. You don’t appreciate it as storytelling because it seems so real to you, but that only shows the power of storytelling. The story you have constructed has made the experience of getting cut off so much more vivid and memorable.
Yet, it is still only a story despite the false sense of certainty it gives you about what happened. In Wallace’s example, he suggests the car that just cut you off “is maybe being driven by a father whose little child is hurt or sick in the seat next to him, and he’s trying to get this kid to the hospital, and he’s in a bigger, more legitimate hurry than I am: it is actually I who am in HIS way.” In other words, despite your confidence in the story you unconsciously constructed about a simple incident, you were totally wrong and there was a whole other story that was very different from your own.
This is what story does: it takes uncertain events and gives them structure that gives us more (false) confidence in what we believed happened. What this teaches us is that facts and evidence are only important to the extent that they fit into and reinforce the story we tell ourselves about what is happening in the world around us.
Because no one story is the same, there is no such thing as objective truth even on a practical level because the things I rely upon to draw conclusions about what is true and what is false still require my interpretation of them (i.e. the story I choose to tell about those facts) and we know from psychology that interpretation is subjective and subject to a host of unconscious needs and irrational decision-making processes.
So this brings it back to the “just tell a story advice” and helps point to us to where attorneys go wrong in their trial prep: they focus on trying to prove an objective truth, and in doing so, fail to appreciate how something they see as objectively true (based on what they believe is overwhelming evidence) can be rejected as totally false by someone else. “The absurdity!” these attorneys declare when the only absurdity was their false belief about how their audience makes sense of the world around them. Logic is relative. Everyone has their own logic with equally sound structures because it is the warrant within those structures that ultimately varies. If we adopt the traditional model of logic as premise, warrant, conclusion, story replaces the possibility of objective truth by injecting itself into the warrant, changing the way we give meaning to the premise in order to draw a conclusion. Consequently, two people can look at the same thing and use sound logic to arrive at two entirely different conclusions.
In this sense, any strategy development efforts that do not rely on the assumption that some degree of what you might otherwise call “irrationality” will always be present in the audience is bound to fail. When we focus on trying to prove objective truths to our audience, it is simply our projection of what we believe is an objective truth against someone else’s belief about the same situation. In this instance, we have not strategized at all. We have just repeated the same behaviors of our audience with the desperate hope that those behaviors will connect in some unified fashion at some point to deliver the results we want.
The best and most successful attorneys are the ones who understand the stories we tell ourselves and focus on telling jurors the story they want to hear. They never draw comfort in their belief that “the truth is on their side.” Instead, they draw confidence from favorable evidence that reinforces the common stories we tell ourselves and build on those as they prepare for trial.
Consequently, it is important to figure out how the “objective” truth fits within a common narrative that jurors might tell themselves, while also identifying stories that run counter to that so you have a clearer picture of the kinds of people that might tell themselves that story, and use that information in your jury de-selection strategy.