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.

The wolf blows down the straw house in a 1904 ...

The wolf blows down the straw house in the fairy tale Three Little Pigs. (Photo credit: Wikipedia)

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.
 Id. at 262-63.

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.