Weaving the Facts of Your Case into an Innately Familiar “Stock Story” Can Influence the Reader of Your Brief.
Posted on May 21, 2012
As was noted in my last post, judges and appellate experts agree that every brief should tell a story. And the story should be one of conflict. Conflict among the characters make the best stories and lawsuits are rife with conflict. Thus, the facts of a lawsuit often make for a great story. But stories don’t write themselves and so an appellate attorney must transform a set of facts into a great story. As one legal writer has noted, facts are forgotten, but stories are remembered.
But what kind of story? Some stories are better than others. Some stories are more familiar and ring more true in our mind. Some types of stories have been passed from generation to generation and become ingrained in our culture.
In writing a brief, try to tell a story that is familiar, innate, one that provides a frame of reference for the reader’s internal knowledge. You must try weave the parties into the story in a way that makes your client favorable and the outcome in the client’s favor recognizable and inevitable.
These are known as “stock stories,” “archetype character stories,” or perhaps even “myths.” These stories are as old as man, and you begin hearing them as children’s fairy tales. Then as you grow you see them repeatedly in literature and the movies. Stock stories have the same basic plot structure, but with differing characters and context. The story is so innately recognizable by the persons being told the story such that they are able to predict the outcome before it occurs and are either satisfied or upset by how the story actually comes to an end.. Your role is to find a stock story that fits your client’s case and provides a natural ending that favors your client. As explained by Law Professor Jennifer Sheppard of Mercer University:
Stock stories serve as an idealized cognitive model of a story that provides a template, or path, for a wide variety of other similar stories to follow. They supply a way of viewing events that allow individuals to understand their experiences and to predict the outcome, offering mental models of the ordinary course events should take based on individuals’ preconceived understandings of common events and concepts, configured into a particular pattern of story-meaning. …. In addition to ‘creating the context in which ideas or events will be interpreted, stock stories also cast people and things in particular roles.’
Jennifer Sheppard, “Once Upon a Time, Happily Ever After, and in a Galaxy Far, Far Away: Using Narrative to Fill the Cognitive Gap Left by Overreliance Upon Pure Logic in Appellate briefs and Motion Memoranda,” 46 Williamette Law Review, 255, 261-62 (2009-10).
There are many different “stock stories” in literature, some of which may be inapplicable to the type of conflicts found in litigation. However, there are several that can be used effectively in brief writing. One such example can be referred to as “the Quest,”where the hero must overcome many travails, against long odds, to succeed and win the prize. If you can capture such a story effectively with your brief, making your client the hero, chances are the reader will subconsciously begin to root for your client and see the appropriate ending is one where your client is the victor. Of course, this only works when you do so subtly that the reader recognizes the stock story subconsciously. Professor Sheppard gives this explanation:
[S]tock stories not only function as cognitive shortcuts that provide meaning to a set of events that would otherwise seem random, but they also reinforce traditional cultural and societal values. Once the individual’s cognitive mind has selected a stock story within which to interpret the situation, that individual’s judgments will be based on the assumptions derived from the social knowledge embedded in the story rather than on the unique characteristics of the current situation. …. It will be extremely difficult for the individual to deviate from what the story has taught him or her about the world and how it operates once the “biasing effects” of the stock story are triggered.
Stock stories are a powerful tool for an appellate lawyer. In my next post on this subject I will further discuss “the Quest” and other stock stories that can be used in appellate brief. And in a final post on this subject I will provide an example where I used this technique in a winning appeal brief.