Introduction: The Lesson
The prosecutor was in trial. He was prosecuting an unlawful wounding before a North Queensland District Court jury. He was relatively experienced. He had practiced for some years and had developed a trial approach with which he was comfortable. His approach was not flashy. Just a tradesman-like eliciting of the evidence, then a straightforward application of the law to the facts. He was about to receive a lesson on the limits of that approach, and the power of narrative.
The wounding had occurred in a North Queensland Aboriginal camp known ironically as ‘Happy Valley’. That there had been a wounding was not in dispute. That it was unlawful, was. The prosecutor wanted to lead photographic evidence of the victim in hospital. The photographs were probative because they showed the slight, alcohol ravaged man who had been wounded. The white dressings on his side and shoulder blade stood out starkly on his dark skin. They graphically demonstrated the number and location of the wounds. And the photographs were not without emotional content. The prosecutor hoped to have them admitted, possibly over objection from the defence.
Defence counsel was an urbane and fatherly figure. Vastly experienced counsel. An effective advocate. He knew the power of story; the potency of narrative. He conferred with his instructing solicitor and client and announced he would not oppose the photographic evidence. The prosecutor soon found out why.
Crown counsel used the photographs that he had been so keen to get into evidence. He referred to them in his closing address. He pointed out the victim’s size and the number and location of the wounds. The evidence didn’t support self defence, he concluded.
Defence counsel used the photographs too. He held one of them up, then placed it on the visualiser. He stared up at the large image and said nothing for a moment. A touch of theatre perhaps. Then he spoke. In quiet, matter of fact tones he said something like this:
‘Members of the jury, put yourselves in my client’s shoes. Imagine, if you will, sitting in the dust across from this man. It is late. After dinner. Dark. There is a pine packing crate between you. It is upturned. It serves as your makeshift table. The remains of your steak dinner is on a tin plate that sits on that crate. Your steak knife is there, along with your fork.
There is only a little light. Some from a hurricane lamp, some from the dying embers of a camp fire. Camp dogs forage and bark and there are shouts from other parts of the camp.
Imagine, that this man across from you is drunk. Very drunk and angry. He is angry with you and you have no idea why. Imagine if you will, that he stands and approaches you where you sit in the dust. Imagine that he comes quickly, closer to you. He is not a big man, as you can see, but he is standing and you are sitting. He stands above you and comes still closer. Closer to you, closer to that packing crate, closer to the plate and that steak knife. He bends as he approaches and his hand moves forward. It is a frightening prospect, isn’t it, to have this man coming at you, drunk and angry and within reach of that knife? Any wonder, that you would fear the worst and act quickly, decisively, to defend yourself as he careers into the crate and into you.’
By the time defence counsel had finished his address, the prosecutor was a little bewildered. He stared up at the photograph that he had wanted in evidence. But now he was unable to see the wounded man in the way he had before. Of course, the photograph had not changed, but then again, it had. The man in the photograph still lay in bed with wounds to his body. But now the prosecutor saw his long, wild hair matted and grimy; and his straggly beard, and his wide and dangerous eyes. It was not hard to imagine him coming at you through the darkness, intent on doing harm.
The jury must have seen the same thing, because they acquitted the accused.
Crown counsel was chastened. There was more to advocacy than knowing the facts and reciting the law. Strong storytelling, a coherent narrative can be persuasive. Decisive. The final address, and submissions in mitigation of penalty ought not be a mere rehashing of the evidence. ‘It is not a summary, witness by witness, recounting what each witness has said. … The argument is an argument, the reasoning that supports justice, the creation of the whole aura of brightness that shines down on our case.’1
The defence counsel involved was my colleague, my opponent in that trial. His closing address demonstrated many of the basic ingredients of a persuasive narrative. (I, on the other hand, had ‘choked the humanity out of the story by reducing it to its legal essentials.’)2
It was factually accurate and used language precisely. It addressed abstract legal issues in vivid, plain and simple language. The theoretical was made concrete. Concepts of self-defence, and honest and reasonable but mistaken belief, are contained within that short, simple story. It contained action and emotion. It used short words, sentences and paragraphs. It allowed the jury to see the objective facts through the eyes of the accused. It enabled them to sympathise with him, and ultimately it convinced them to acquit.
Of course, more than anything else, it contained a compelling story, consistent with the evidence and informed by his instructions.
Finding the Story
Sometimes this is obvious. Sometimes it is right there in the facts. Compelling in its simplicity and tragedy. For example, the mother whose momentary inattention while driving, caused her unrestrained toddler to be ejected from her car. Here is the story of a mother’s distraction, then her panic; of her finding and cradling her dying child. Legally, it is relevant to sentence because of the principal of extra-curial punishment. Here that principal might be enough to shield an accused from a term of actual custody. But how bland, how emotionless, and ultimately, how ineffective might it be to invoke the principle and hand up the authorities. Surely, that sad, stark story; simply told, is of as much use and more powerful than reciting the principal and dissecting the cases.
Often though, the story is not clear. It is there somewhere in the material, in the facts, but it must be found, interpreted and told in the context of the relevant legal principles.
The well stream of the story must be your instructions. But oddly, your client may not be the best source of story. At least not without assistance. Human frailty means that clients may tell you much that is irrelevant, and omit that which is crucial. In the example of the mother given above, the grieving, guilt-ridden mother ignorant of the legal principle might never say, ‘But why should I go to jail. Surely I have suffered enough already.’ It is often up to the legal team to discover the important elements of the story: the important information about the characters and events that get to the heart of the matter.
Careful conferencing is required to maximise the chance of finding the story. How often have we found ourselves in trial when a client reveals some important matter that has been missed. ‘So and so has a grudge against me,’ or ‘that’s not what she told so and so,’ or, ‘the doctor told m
e this might happen on the medication.’
Trial counsel should strive to be better story tellers. Once we are, we will have prepared the story ‘… remembering that every story has a beginning, a middle, the climax, and the end. We will be able to tell the story to the jury and support it with evidence during the trial, and put it all together again in the final argument much more effectively than [the client] will ever be able to do under fire.’3
The Value of General Knowledge
Today, more than ever, keeping abreast of popular culture and trends is crucial to finding and conveying the story. How is it possible to find the story, let alone convey it to a jury or judge, when you don’t understand the culture or the language relevant to the case.
For example, there is a resort island off Far North Queensland. That resort island is staffed by young people and frequented by young travellers. It is what has been called, a ‘party island’. A place where staff, after their shifts, are given a wrist band that entitles them to free alcoholic drinks so long as they socialise with guests. This factor, along with other matters peculiar to the island, has contributed to a number of criminal charges coming before North Queensland courts. It is simply not possible to tell a coherent story about events on this island, without coming to grips with the culture of the place.
Contemporary technologies are another important area that should be mastered if one is to tell accurate and persuasive stories about those of us who use them. Like it or not, contemporary Australians live much of their lives in and through ‘cyber space’. Not to understand that culture and communication, not to come to grips with it, not to be able to describe it and appreciate its effects, is to be deprived of half the story.
A Cautionary Approach
Two further aspects of narrative in the legal context warrant comment. The first, is that legal story telling is not like creative writing. The touchstone must be honesty and accuracy. The second is that the narrative style must be sympathetic to your jurisdiction’s legal tradition.
Advocacy styles vary. Some years ago I undertook advocacy training at the National Advocacy Centre, in Columbia, South Carolina. There, I learned a little about the American approach to trial advocacy.
It is a distinct and varied approach. However, some of what we see in popular fiction is true. American advocates do pace, gesticulate, ask rhetorical questions and strike thoughtful poses that can slow time. By comparison Australian advocates are a reserved lot, our approach (with some notable exceptions) more restrained and understated. The Australian equivalent of the theatrical flourish, is to adjust one’s wig.
The need for a cautionary approach to narrative and style was summed up by Gerald Powell:
‘While there is a strong parallel between lawsuit storytelling and storytelling as entertainment, the parallel is not exact. Like any analogy, it can be taken too far. Therefore, a word of caution is appropriate. If the jury ever comes to believe the lawyer is trying to tell a good yarn, then the effort is a total failure. The lawyer loses credibility, and the client loses the case. This methodology should not be taken too far and demands some subtlety. Thus, exaggeration, melodrama, or the use of props, dialogue, or other such overtly theatrical devices can doom the storyteller to failure. As with anything done in the court room, sincerity is the watchword.’4
The American legal profession has a long history of valuing the importance of story. And they ought to. Because in some states the art of legal narrative finds its greatest expression. If you ever doubt the value of a good story, well told, then consider this:
In America, the death penalty is available in some federal cases. As well, there is a formal process for defence counsel to try to persuade the prosecutor not to seek the death penalty. The opportunity allows experienced ‘federal capital practitioners’, to use the power of narrative to attempt to persuade the United States Attorney not to seek the death of the convicted person. So, the life story of the convicted person is told. It is a life story told, quite literally, to save a life.5
Fortunately, that possibility does not exist here. But that doesn’t mean that good narrative, well told, should not be central to our Australian legal experience.
Frank Richards
Frank Richards is a Legal Aid Queensland, in-house counsel based in Townsville. He was admitted to the bar in 1997 and has worked in private practice, for the Aboriginal and Torres Strait Islander Legal Service and the Qld DPP.
Footnotes
- Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail Every Place, Every Time (2005) at 228
- Gerald R Powell, Opening Statement: The Art of Storytelling, 31 STETSON L. REV. 89(2001) at 92.
- Spence supra note 1 at 141
- Gerald R Powell, Opening Statement: The Art of Storytelling, 31 STETSON L. REV. 89(2001) at 91
- United States Department of Justice, United States Attorneys Manual s9-10.000 (2007)
