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You’re not too old for a story (but you might be too young!)

Wednesday, October 27, 2010
posted by Douglas Keene

The idea of using a narrative to tell your litigation story is so widely accepted it’s almost surprising someone would research the power of a story But Kenneth Chestek did just that with appellate professionals in his article recently uploaded to the SSRN network.  And what he found is intriguing.

Chestek covers familiar ground in his hypothesis that using a story narrative to “weave a pathos-based appeal into a brief will produce a more persuasive document”. He asserts that this idea is almost true at trial but that judges are not in agreement as to whether briefs should tell a story as well. So Chestek sets out to measure the effect of story reasoning on a judge’s thought process.

“In early 2009, I conducted a study in an attempt to fill that gap. I wrote a series of test briefs in a hypothetical case and asked appellate judges, their law clerks, and appellate court staff attorneys, appellate lawyers, and law professors to rate the briefs as to how persuasive they were. My purpose (which I did not disclose to the test participants) was to measure whether a brief with a strong strand of story reasoning, woven in with the logos-based argument, would be more persuasive than a “pure logos” brief.” –page 8

Chestek gave his briefs (two were strictly factual and two were in story format) to appellate judges, appellate law clerks, appellate court staff attorneys, appellate practitioners, and law professors—95 participants in all. Chestek’s main finding is that, yes, the story form brief is persuasive. But more intriguing is how the persuasiveness of that brief varies by age and experience. In short, the longer you have been doing your job (i.e., the more experience you have at the appellate level) the more persuasive you find the story style brief.

Chestek explains that law clerks were the only group that did not express an overall preference for the story brief. Chestek hypothesizes that these ‘new’ professionals (with less than five years experience) prefer a focus on “the facts” to aid them in helping their supervisors (the judges) identify laws at issue. In other words, new professionals see the informational brief as one that more represents “thinking like a lawyer”.

“Perhaps it is because “the law” becomes familiar and the stories become the “new” information that is interesting and engages the attention of the reader. Or perhaps it is related to the fact that emotional reasoning (the “story strand” of our DNA molecule) evolved in the human brain long before logical reasoning. Perhaps as we mature, we learn to trust our emotional reasoning processes more.” (p 31)

What isn’t considered in his hypothesis is the generational difference that is well documented between Gen Y (the law clerks) and the Gen X/Baby Boomer lawyers and judges.  We have written exhaustively on the subject, and can tell you that the difference between generations can explain the difference just as well.  As a member of one of these older groups who reads hundreds of pleadings, motions for summary judgment, and appellate briefs every year, I know how much more I look forward to reading those written in story form.  My kids would probably tell me that they wish the author would cut that stuff out and just explain what needs to be shared.

This gives credence to the old advice to “know your audience”. If you are speaking (or writing) to a professionally “newer” group, you may want to use a more stream-lined and factual approach. If your audience is more experienced, a story narrative may be both more interesting to them and more persuasive.

Chestek, K. (2010). Judging by the Numbers: An Empirical Study of the Power of Story. SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1649869

Chestek, K. (2010). Judging by the Numbers: An Empirical Study of the Power of Story
SSRN

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