Storytelling for Appellate Writing: A Few Tips on Using the Theory of the Case

In the most recent ABA Journal, Chris Arledge discusses how well storytelling can assist in many aspects of trial practice.  See Making Your Case:  Storytelling Problems and Solutions, 104 ABA Journal 16-17 (Aug./Sept. 2022).  Arledge’s interesting article on applying the craft of “other professional storytellers—like novelists, journalists, advertisers and filmmakers” to trial practice reminded me just how much our job as appellate advocates is storytelling.  See id.

 

In the appellate and academic worlds, we have many great books and even conferences on using storytelling to represent our clients.  See, e.g., LWI’s co-sponsored Applied Legal Storytelling Conference, https://www.lwionline.org/conferences/eighth-applied-legal-storytelling-conference.  If you are just starting to incorporate storytelling into your writing, I recommend consulting these resources.  In addition, I can share some tips that are popular with my writing students to hone your organization by using key tenants of storytelling to connect all parts of your briefs.

First, make sure you take the time to write out a specific theory of the case.  Using storytelling well, either in objective inter-office memos or persuasive external writing, requires a writer to truly understand the theory of the case.  Often, my students with large scale organization issues struggle to state their theories of the case.  Integrating one theory from an introductory “hook” through a compelling Statement of the Case and to a cogent Discussion requires consistent use of the same girding theory.

Second, distill your points into an “elevator story,” not just to persuade, but to explain the problem and give your suggested solution using storytelling.  Lately, I have asked students to create an elevator story of a one-minute oral summary of their Discussion or Argument sections.  I explain I am not just asking for a persuasive “pitch,” but want a true summary of their points.  If they cannot do the story in one minute or less, I suggest they go back to their outlines, look for an overarching idea they can use as the theory of the case, and then apply that theory to all parts of their papers.  Once writers have a strong theory of the case, they can much more easily use ideas of character and climax from storytelling.

As appellate writers, our job is to tell the story of what went well, or poorly, at trial, and to show how our suggested result will give our story the desired result.  Stressing your theory of the case as the connection between all parts of your writing will help you employ storytelling more deftly to reach that happy ending.