Friday, December 7, 2012

New legal skills scholarship: "Storytelling for Lawyers"

This article is by Professor Jonathan Van Patten (S. Dakota) and is available at  57 S.D. L. Rev. 239 (2012).  From the introduction:

    There are great souls out there who have extraordinary powers of persuasion. If we have been fortunate, we have encountered several of them over the course of our lives. In ways unique to each, they combine authority and wisdom. They appear in different roles--parents, relatives, teachers, pastors, and even political leaders. Their wisdom has shaped us fundamentally, in ways that are discernible long after they are no longer part of our lives. I did not always understand what my favorite law school professor was saying, but his words had power that pulled me along as I was trying to understand. In the words of Jack Nicholson, he made “me want to be a better man.” I do not know how to teach this. It is a gift and we are very fortunate when we are exposed to it, and have the maturity to recognize it.

    For the great majority of us who do not have this gift, persuasion is a harder task. We encounter skepticism and resistance. If we are to be successful in persuading someone, we must first recognize that it is his or her decision, not ours. In contrast with the great teacher, the process cannot be from the top down. It must work from the ground up. If lawyers have a general problem in the art of persuasion, it is that they preach too much, but lack moral authority. They do not recognize that the movement toward a decision comes primarily from within the decision-maker. This does not mean we cannot be great persuaders; we simply have to do it by other means.

     One of the principal techniques of persuasion comes through understanding the art of storytelling. Storytelling is primal. It can show the way to a common ground that ties in to the basic values of the listener. We all grew up with stories. There is a deep psychological need here. I sense, but cannot fully describe, the importance of stories in my childhood. I am able to see more clearly, however, the importance of stories in the development of my own children. My oldest, now a pathologist in Minneapolis, would absorb words and storylines as if they were the water of life itself. I remember her usual response before the age of two to a story reading was: “More . . . more.” Frog and Toad, Harold and the Purple Crayon, Where the Wild Things Are, The Velveteen Rabbit, along with the Winnie-the-Pooh series, were the main staples of bedtime reading for all of my daughters. I read these stories hundreds of times. The repetition might be viewed as indoctrination, but it is much more complex than that because, even at an early stage, my kids were not a blank slate. There was already some psychological need there that the stories were addressing. It must be deeply embedded in the genetic code. The stories become part of the moral infrastructure that is being worked out as part of the child's development. As noted by Bruno Bettelheim: “The child intuitively comprehends that although these stories are unreal, they are not untrue.” The almost insatiable desire for stories is also reflected in the active fantasy life that kids have with their stuffed animals and dolls, as well as action toys. We do not outgrow this.

     The search for meaning is mediated through stories. Stories help to make sense of life. Some stories confirm existing beliefs and prejudices, while others stretch the worldview. They are part of our search for meaning. Movies, for example, are about entertainment, but the better ones are also about meaning. Meaning is not necessarily limited to what is intended by the storyteller. The story may take on additional meaning from its audience. In discussing the popularity of The Shawshank Redemption, director Frank Darabont made the following observation:

       The film seems to be something of a Rorschach for people. They project their own         lives, their own difficulties, their own obstacles, and their own triumphs into it,         whether that's a disastrous marriage or a serious, debilitating illness that         somebody is trying to overcome. They view the bars of Shawshank as a metaphor         for their own difficulties and then consequently their own hopes and         triumphs and  people really do draw strength from the movie for that reason. 

    People project their own values on a good story. They identify with characters and their predicament and begin, in the words of James McElhaney, to pull for one side or the other. This is critical for persuasion built from the bottom up. People should not be told what to think. They will reach the conclusion on their own and will hold on to it more firmly if they can relate it to their own life story.

    There is already considerable literature on the use of storytelling by lawyers. The purpose of this Article is to articulate specific propositions regarding the techniques of storytelling. While most of what follows is not necessarily new, it is useful to collect these propositions and set them out in a systematic and accessible format.


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