In short, the other side’s story might not be the one you need to tell, even in your own words. For this reason, Sungaila encouraged practitioners to tell their client’s story, rather than feel constrained by the opposing party’s framing of the case. Defense counsel might focus instead on procedure, emphasizing overreach or an authority’s mistreatment of the defendant, casting the defendant as a victim, or on the law, nitpicking elements to overturn a conviction. For example, in a criminal matter, the prosecutor wants to tell the parties’ stories, recounting the defendant’s abhorrent conduct and its impact on the undeserving victim. In any given case, one side will likely emphasize one or the other. Good anything appears effortless, he continued: “Don’t let the words get in the way.”Įvery case contains potentially three stories, said Professor Chestek-the story of the parties (what happened), the story of the law (is the law just or constitutional), and the story of the case (the procedure by which the case is decided). “Given the choice between a good story and good writing, take the good story every time,” he said, citing Patterson. Anything that does not move the story forward has to go, says Justice Ellis. So how can you best tell your client’s story? Like good fiction, a well-written brief moves the story along. How does the appellate advocate tell the story? Rethinking legal writing as storytelling promises better communication and thus advances our clients’ interests. Like a well-written book, a reader engrossed in a good story wants to see it through to the end. He noted that a judge may read a well-written brief in its entirety. Good writing, fiction or appellate, “grabs people early” and “makes us care about the characters involved,” says Sungaila. While fiction- and legal-writing aren’t perfect parallels-among other things, a brief-writer front-loads critical information, while the fiction writer builds suspense-all good writing contains elements of a good story. Thus, stories help us connect judges to our clients’ circumstances. As characters in their own stories, readers find commonality with people struggling within theirs. When we frame our client’s situation accordingly, we communicate on a different level. Stories resonate because we all experience our own lives as stories-we are protagonists working to overcome obstacles to reach our goals, Professor Chestek explained. The Honorable David Ellis, justice on the Illinois First District Appellate Court and author of several novels with James Patterson, said it this way: “Most cases are close calls and could conceivably go either way.” In short, “you want the court to want to rule for you.” Professor Chestek, professor of writing at University of Wyoming School of Law and a published author, warned against the myth that “facts are for sissies and trial courts.” Facts, he emphasized, are all that matter-when the story is properly presented, the law is merely the means to achieve the “correct” outcome. A court motivated to assist your client in overcoming his present circumstances will be more easily persuaded to apply the law to get him there. And that is, after all, the advocate’s goal-for the judge to care about your client and the challenge he faces. Good appellate writing, like a good story, makes us care about those involved, Sungaila, leader of the appellate-practice group at Buchalter and Ellis Island Medal of Honor recipient, explained. Why does recasting legal writing as “storytelling” advance our client’s interests? Moderated by the Honorable Jane Bland of the Supreme Court of Texas, these talented writers shared their experience with storytelling in the legal realm. Sungaila, appellate judge and mystery writer David Ellis, and legal writing professor and expert in the emerging discipline of Applied Legal Storytelling, Ken Chestek-expounded on storytelling as integral to effective written advocacy. A panel of three well-honored and oft-published legal writers-practitioner and author M.C. Appellate practitioners have but one goal: to convey our client’s position so that those reading our briefs see things the way we want them to.
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