The Advantage Blog
Review of “Narrative Persuasion in Legal Settings: What’s the Story”July 20, 2011 | | Case Strategy
The article “Narrative Persuasion in Legal Settings: What’s the Story” provides some constructive advice to help attorneys evaluate the usefulness of narratives and incorporate this strategy into their practice. As useful as it is, I believe the authors’ analysis would benefit from widening their focus to include the rhetorical perspective on narratives and by providing a more developed and practical set of prescriptions for their use.
The authors hail from the social psychology perspective and are therefore understandably focusing on the literature from that field, but the contributions from rhetoricians should be acknowledged. For example, Walter Fisher has developed a comprehensive theory of human communication as narration. Fisher “offer[s] an approach to the interpretation and assessment of human communication [that] assume[s] that all forms of human communication can be seen fundamentally as stories, as interpretations of aspects of the world occurring in time and shaped by history, culture and character.”
In other words, rather than viewing narrative as a subset of communication, Fisher suggests that all of our interactions can be assessed in the context of stories. This broader perspective can be useful in the courtroom as attorneys think about their overall case and the perceptions of the key actors and actions being portrayed during the trial.
Fisher’s perspective also calls into question the dichotomy forwarded by the authors that rhetorical communication presents logical, cogent arguments and narratives primarily influence receivers on a more emotional level. Although stories are less likely to appeal to more formal argument schemes, they can persuade through what Fisher calls a “logic of good reasons.” These good reasons are based on values that guide an audience’s evaluation of a story. Fisher also explains that “narrative rationality” intuitively leads audience members to a conclusion about which stories make sense. Narrative rationality primarily considers whether a story is coherent (narrative probability) and whether it is consistent with the listeners past experiences (narrative fidelity).
Expanding their application of narrative theory beyond just discrete stories designed to appeal to listeners’ emotions would widen the applicability of this strategy. I am not certain how often a lawyer or witness has the opportunity to develop such a detailed story that a juror would be able to transport out of the courtroom and into the alternative reality of the narrative. The authors argue that narrative persuasion is optimal “when the communication succeeds in immersing the recipient in the flow of the story.” I would think it is easier to do this when the recipient is watching a movie in a dark theater where their critical judgment is suspended or in reading in their quiet living room than in a stressful courtroom, where they are expected to be critical consumers of communication.
The authors address this concern to some extent by presenting advice for how to increase the likelihood of constructing a narrative more likely to induce “transportation.” These characteristics of a strong narrative can help an attorney to develop more compelling stories, regardless of whether total immersion is attainable. This section is very useful for individuals with a more limited experience in storytelling theory and practice.
The practical advice for when narratives might be useful is helpful for attorneys wishing to employ this strategy. It would be constructive to provide some additional advice about how to employ this strategy in the flow of a typical trial. Would it be possible to elicit such stories from a witness? Or is it more useful in opening and or closing? Also, it would be interesting to know if fictional stories would play as well in a legal setting (where relevance is of greater value) as they do in other contexts.
Relating to another practical suggestion made by the authors, I am not sure how practical or wise it would be to choose a jury based on their susceptibility to transportation. Voir dire allows for more of a “de-selection” process where troublesome jurors are struck rather than a “selection” process where amenable individuals are chosen. Using a precious peremptory challenge to eliminate a juror who is not highly transportable might be difficult when more troublesome characteristics are exhibited by other members of the venire. It might be more useful to use jurors’ past experiences and attitudes to determine which potential panelists might be adverse to the story you want to tell.
The use of stories to affect the emotions of a jury can be an effective strategy. The authors’ recommendation to employ a mix of logical and emotional appeals is sound, and reflects a strategic approach that dates back to Aristotle. There is great potential to view narratives in a larger context and to consider the ability to combine appeals to both logic and emotion in an overarching story that encapsulates one’s case.
 Fisher, Walter R. (1989). Human Communication as Narration: Toward a Philosophy of Reason, Value and Action. Columbia, SC: University of South Carolina Press, xii.