"License to Tell" by Steve Heninger was published in The Alabama Lawyer, Vol. 77, Number 5. September 2016.

 

James Bond was Ian Fleming’s character on Her Majesty’s Service with a license to kill. (007)1 That’s quite a broad and terrifying governmental license. As members of the bar, you and I also have a unique license issued by our supreme court. We have a “license to tell” stories, our client’s stories about something that has gone awry in an ordered society. Think about that license. No other profession has that license even though they tell stories for a living or for entertainment. Journalists don’t have a governmental license to tell stories or write editorials. Authors don’t have a license–they have a publisher. Songwriters and poets don’t have a license. Matthew, Mark, Luke and John didn’t have a license. The Federalist Papers weren’t written by people with a license. All of those professional storytellers had a story and point of view but they didn’t have a “license to tell.”

We have stories, points of view and a “license to tell.” Unlike those other professional storytellers, however, we have restrictions that put boundaries and burdens of proof on our craft. We must tell stories that are supported by factual evidence, legitimate inferences and the law. We don’t just write or speak stories–we use the dynamic examination of witnesses and documents to tell the story. Moreover, our audiences are summoned by force of law to come to court and serve as jurors as opposed to people who voluntarily consume and pay for other storytellers’ works. Despite those differences, the elements of what makes a good story are common ingredients. A good story (whether told in court or elsewhere) answers three basic questions: 1) What?, 2) So what? and 3) Now what? What happened and why did it happen? So what– “why should I care?” Now that we know the story and have some interest in it, what happens next that wouldn’t cause us to consider something important without this stimulation? “Now what?”

While we have the right (indeed, the legal duty) to rise and speak on behalf of our clients, there is no corresponding duty on the judge or the jury to listen or pay attention if they find the story unworthy of their efforts. The message of the story is doomed if there is no answer to each juror’s internal questions: “Why should I care?” or “So what?” It is only when this “license to tell” is used effectively to convey a compelling and interesting story that the words are actually heard, felt and embedded in the hearts and minds of our audience. Our bar cards give us the opportunity to rise and speak in court, but our brains and common humanity will dictate how successfully we meet that opportunity. The passion of the story must infect the storyteller and then the telling must move that passion to the audience.

Storytelling is a fascinating interaction among: 1) the story, 2) the storyteller and 3) the audience. All three have to engage and interact with each other. Stories are loans, not possessions. Even though (on the surface) they are about specific individuals, they must have an underlying universal message and feeling that is easily transferred to all of our experiences, emotions and human condition. The story is on loan to the storyteller and retelling is a payment on that loan. Stories live to be retold. If told only once, they die. This observation holds true in the courtroom just as strongly as it does at the kitchen table, the office coffee station or over a drink with friends. If the jury isn’t interested, engaged and involved enough to be retelling the story to themselves during the trial, retelling it to their fellow jurors during deliberations or to their family/friends after the trial, it has died with our telling. We have killed it by suffocating its natural, inherent breath with a sterile, uninteresting and simple recitation. Reciting stories makes them nothing more than words that have been reduced to cookie-cutter products. Telling the stories is different. The words, messages and feelings are mixed in with the pace, expression and style of the story. The factual ghosts of the story as it took place when it was actually happening in real time become alive and rise again to speak.

Pablo Picasso once said, “The meaning of life is to find your gift; the purpose of life is to give it away.” This profound observation gives valuable instruction to us as licensed storytellers. The meaning of our task is to find the client’s story. Identify its shape, its heartbeat and its message. Then we give it away to our audience in a way that can help them answer the three essential questions: What? So what? Now what?

The best teachers do not tell us what we must see. The best teachers show us where to look and spark an interest so we can see for ourselves. The same holds true for us. We cannot effectively force jurors to see what we see. It is much more effective to show them where to look so they can see for themselves. Self-persuasion is much more impactful because it embeds itself in the personal experiences and feelings of the audience to illuminate its likely truth. Our task is to identify those points of reference that enrich the curiosity and interest that will cause the jurors to be motivated to give them their attention and to be open to feeling the force behind them.

Every story is founded upon a network of assumptions, assumptions that are based on the probability (not certainty) that most of us share some common beliefs, attitudes and experiences. The stories we tell must be compatible with that hard-drive network or the transmission of energy will be blocked. Connection is the key. Disconnection is a death sentence to the story. The selection of assumptions must undergo a risk/benefit analysis. What assumptions are likely to be very risky and not likely to exist in the hearts and minds of most of the audience? What assumptions are so universal that they are likely to connect with just about everyone? Safety, security, self-respect and honesty are usually reliable and universal. Personal quirks, eccentricities and over-reliance on technicalities are less likely to have universal appeal.

For example, rules and laws are good starting points, but jurors may look to find holes in them because of their personal experiences. The reasons behind such rules and laws (e.g. safety, security), however, are more basic and easily confirmed. Meaning is what matters–not just details. Details are simply naked dots in the story until they are connected by meaning. Context is just as important as content. Content is the factual record. Of course, those facts took place in a context at the time of the events at issue. However, context gets expanded in the courtroom when the story is retold because the jury brings in their attitudes, beliefs and experiences. If you think of the analogy of a garden, these attitudes, beliefs and experiences are the composite in which that the story is placed. This fertilization is natural if they welcome each other. The content will be filtered through the context they choose to apply. This is why we need to frame the story in a way that will most likely find support in universal attitudes and feelings. In short, we have to help the details find their way through the filters. The context in which the event took place gives way to the context of its retelling in the courtroom. Both must be considered.

A story is facts wrapped in emotion/logic that connects with our human condition and compels us to take action or realize that something inside of us all has been confirmed or refuted. Specific details and rules are important, but they are not enough to gain attention that compels action. Judge Leonard Hand once made this remarkable observation:
“I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws, upon Courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no Constitution, no law, no Court can save it.”

Judge Hand did not say that liberty or legal rights lie in the logical minds and rational thinking of men and women. He did not say that the party with the most facts and the best legal precedent wins the case. He recognized that legal rights must connect with “the hearts of men and women.” If it does not, no rules, laws, constitutions or courts can protect these rights. Therein lies the power of the story, a power that is generated by a retelling that is based upon fact and embraced by assumed feelings and attitudes common to all of us. A story whose “What?” carries a clear and inherent answer to “So what?”, and “Why should we care?”–a story that compels taking a stand to give it a resounding ending “Now what?”

We have all become good at telling juries what we want them to know, what facts are the most important and what rules govern those facts. Have we forgotten what our jurors want us to understand about them–their needs, their concerns, their desires, what they care about and why? Your story is not just what you say it is. It’s more about what your jury says it is. A good storyteller invites the jury to join in the narrative conversation and add to it (or subtract from the other sides’ version). Is it a battle of stories or a battle of storytellers? It is both! A story doesn’t exist without a storyteller. A storyteller doesn’t exist without a story. Neither of them becomes alive without an audience. None of this matters unless it resonates its vibrations in the chords of the facts strummed by the teller and appreciated by the audience. Stories aren’t lectures. You can’t catch a fish by lecturing and cajoling a fish onto your hook. There must be bait– bait that the fish finds appealing to its needs and worth the risk of swallowing it. We have all heard the old maxim, “You can lead a horse to water but you can’t make him drink it.” There’s another side to that story– you can feed a horse salt and make him thirsty. I’m not saying that our stories are simply bait or salt, however, these analogies serve to remind us that the focus must be on the wants, needs and beliefs of the jury. I close with a great reminder to all of us who are licensed to tell. Brian McDonald wrote in his book, The Golden Theme:
“As a storyteller, you are a servant of your story, not its master. You must do what it requires, not what you want it to do. You must remove your ego from it. Art is not to show people who you are; it is to show people who they are. Or to put it more accurately, it is to show us who we are–as human beings.”

Endnote 1.
It is a little weird that my bar card was issued as “HEN-007.”

 

Alabama Fellow Steve Heninger of Heninger, Garrison & Davis, LLC, earned a B.A. degree from the University of Illinois. After spending two years as a lieutenant in the U.S. Army, he earned his J.D. degree (summa cum laude) from Cumberland School of Law. He served as a law clerk to Honorable James H. Hancock, district judge for the Northern District of Alabama. He is a past president of the Birmingham Bar Association and the American Board of Trial Advocates (ABOTA), Alabama Chapter.