A Study Shows that Experienced Judges Find Storytelling Briefs to be More Persuasive.
Posted on August 20, 2012
I have written previously in this blog about using the concept of storytelling in an appeal brief. I wrote an entire 4-part series on the subject earlier this year, and the first post in that series is found here. Suffice it to say that from my five years as a staff attorney working for several justices at the Alabama Supreme Court and subsequently from my nearly fifteen years as a practicing appellate attorney, I believe that while no appeal can be won without a sound legal argument, the most important part of a brief in almost any appeal is the Statement of Facts and how the facts are presented to the reader.
In most instances, you can either present the facts of your client’s case in a cold, pure logical fashion (as many lawyers think is required) or in the form of a narrative story. Since storytelling goes back to the very roots of human existence, even before writing was developed, it is more likely to engage and draw in the reader of the brief. My Linked In acquaintance John Bursch, the Solicitor General for the State of Michigan, pointed out to me a very interesting article by Professor Kenneth Chestek of the Indiana University School of Law – Indianapolis. Professor Chestek did a research study to test the power of storytelling in an appellate brief. He explained:
My hypothesis is that a brief that relies purely on a logos-based argument will be lifeless, just as a single strand of the DNA molecule is incomplete. Winding in a solid story-based argument will bring the brief to life.
K. Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 Journal of the Ass’n of Legal Writing Directors, 1 – 35 (2010).
Professor Chestek tested his hypothesis by submitting “test briefs” in a hypothetical case to a small group (95) appellate judges, their law clerks, appellate court staff attorneys, appellate lawyers, and law professors to be judged as to how persuasive the reader believed the various briefs to be on a scale from one to five. Participants were provided two briefs for each party to a hypothetical appeal, one based on a purely logical argument and one incorporating a strong storytelling element. While Professor Chestek’s excellent article provides great detail as to the results of his study, I believe the following conclusions are noteworthy for appellate lawyers.
- most readers found the briefs incorporating storytelling to be more persuasive than a pure logic brief (64%/31%/5%);
- the more experience the reader was in his or her position, the more they found the brief with storytelling to be persuasive (less than ten years preferred storytelling 56%/41%/3%, while 15 years or greater experience favored storytelling 73%/22%/5%);
- law clerks, who are fresh out of law school, were evenly split between the logic briefs and storytelling briefs;
- there was not a statistically significant difference between how storytelling was preferred in the brief of the appellant/petitioner versus in the brief of the appellee/respondent;
- there were no statistically gender differences determined among the participants;
- the key element that led to the brief incorporating storytelling being preferred is that it was found to provide a larger context for the conflict involved in the litigation and allowed the readers to see the big picture, and it personalized the case for the reader even if the litigant was a corporation.
These results were not surprising to me, because they supported what I have believed about brief writing for a long time, but they did encourage me in that I can be more confident that the way I choose to write an appellate brief is not just more pleasing to me as the writer but is also more persuasive to experienced judges. If you want to learn more about storytelling in an appellate brief, be sure to go back and read my 4-part series of posts on this subject. The first post is found here.