The Hero's Journey: Winning More Trials by Telling Emotionally Compelling Stories
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THE HERO'S JOURNEY: WINNING MORE TRIALS BY TELLING EMOTIONALLY COMPELLING STORIES CLE Credit: 1.0 Wednesday, June 18, 2014 11:50 a.m. - 12:50 p.m. Ballroom B Northern Kentucky Convention Center Covington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Introduction ..................................................................................................................... 1 The Definition of Story ..................................................................................................... 1 The Hero's Journey ......................................................................................................... 6 Conclusion .................................................................................................................... 14 THE PRESENTER Frank M. Mungo Frank M. Mungo Attorney at Law 7310 Turfway Road, Suite 550 Florence, Kentucky 41042 (859) 372-6670 frank@frankmungoattorney.com FRANK M. MUNGO is a trial lawyer, representing plaintiffs in civil cases and those accused in criminal cases in both Kentucky and Ohio. He consults nationally with trial lawyers to help them uncover the emotional core of their cases and structure their stories to motivate jurors to help their clients. Mr. Mungo is an instructor at the Trial Lawyers College in Wyoming, founded by Gerry Spence, and an adjunct at Salmon P. Chase College of Law where he also received his J.D. in 1998. He received his B.S. in physics from Presbyterian College and M.S. in aerospace engineering from the University of Cincinnati, and M.S. in mechanical engineering from North Carolina State University. i ii THE HERO'S JOURNEY: WINNING MORE TRIALS BY TELLING EMOTIONALLY COMPELLING STORIES Frank M. Mungo I. INTRODUCTION Chances are that if you find yourself standing before a jury on a regular basis you think of yourself as a trial lawyer, a storyteller. And for your clients who have lived through almost unimaginable pain and adversity, you are their only hope for justice. And because you're a trial lawyer, you welcome this responsibility. But it's becoming harder to get justice for your clients. We live in the era of tort reform, painting our clients as malingerers who file frivolous lawsuits in hopes of winning a lottery verdict, and sensationalized media coverage that presents, analyzes, and convicts our clients even before they walk into the courthouse. So, how do we persuade jurors who are exposed to this toxic rhetoric? The solution is that we must tell a better story than our opponent. In essence, whoever tells the best story wins. But how do you tell a story that cuts through this haze of skepticism and fear to reach inside the heart of each juror so they can really know your client's story? In this article you will go on a journey to learn the definition of what story is and the power of the Hero's Journey, the story structure that influences even the most skeptical listener. II. THE DEFINITION OF STORY Since about 30,000 years ago, people have told stories to pass along information. In fact, human beings are hardwired for story. Neuroscientist Antonio Damasio has written: "The problem of how to make all this wisdom understandable, transmittable, persuasive, enforceable – in a word, of how to make it stick – was faced and a solution found. Storytelling was the solution – storytelling is something brains do, naturally and implicitly . [I]t should be no surprise that it pervades the entire fabric of human societies and cultures."1 "The story's power, then, is twofold: It provides simulation (knowledge about how to act) and inspiration (motivation to act)."2 From the first time young lawyers walk into a courtroom, they are inundated with the sound advice from experienced attorneys that to win you have to tell the jury your client's story. Perhaps the noted trial lawyer Gerry Spence sums it up best: Give me the story – please, the story. If I can finally understand the case in simple terms, I can, in turn, tell the same story to the jury and make them understand it as well. I go about my life confused most of the time, but when I get something clear I can usually communicate it. Getting it clear is not the work of huge minds, which often are baffled by themselves, but the labor of 1 Antonio Damasio, Self Comes to Mind: Constructing the Conscious Brain 293 (2010). 2 Chip Heath and Dan Heath, Made to Stick: Why Some Ideas Survive and Others Die Loc. 3252 (2007). 1 ordinary minds to understand [the] simplest of stories . most of all, lawyers must be storytellers. That is what the art of advocacy comes down to – the telling of the true story of one's case.3 But what does the word "story" mean? Is it synonymous with the word "narrative"? In the realm of the courtroom, these two words differ significantly in how they persuade jurors. A. Narrative Defined As defined by the Oxford Dictionary a narrative is "[a] spoken or written account of connected events; a story. Note the temporal element contained within this definition. A narrative is a sequence of events. For example, let's imagine we're standing in front of a jury and start our opening with this "narrative": This is a case about the negligent driving of John Smith who failed to yield the right-of-way to Jane Doe as he was merging North onto I-75 while on his cell phone. As he moved into her lane, he smashed into her. The impact caused her to lose control of her car and crash into the guardrail. As a result, Jane, who is thirty-eight, suffered a fractured skull, ruptured her spleen, and fractured both of her legs. Jane's medical expenses are over $250,000, and her lost wages are over $85,000. She no longer is able to attend her son's baseball games. She can't sleep well at night because of her painful headaches. Many practicing attorneys would consider this a cogent description of a personal injury case. It is an accurate accounting of the specific series of events detailing the harm caused to Jane. In fact, this sequence of events that has happened to Jane is called a "plot." Plot is "the arrangement or ordering of the incidents in a story, play, novel, etc. Plot is the sequence of events."4 A story needs a plot to hold it together; it is the story's temporal backbone. Think of plot as what the protagonist does. The example above is called a plot-based narrative. But does the plot alone make a story? Does it pull you into the story or, instead, hold you at a distance? No doubt you can intuitively feel the problem with a plot-based narrative – it keeps the listener at a distance from what the protagonist feels, which prevents the listener from emotionally connecting with her. Plot-based narratives do not trigger the jurors' interest or create meaning. A good plot is critical to a good story, but jurors will need more than just a good plot to be pulled into the story. 3 Written remarks of Gerry Spence at the NACDL 1999 Fall Conference, Lawyering on the Edge: Pushing the Limits of Aggressive Advocacy, Chicago, Illinois (November 3-6), reprinted in ABA Bar Journal, Apr. 1, 1986. 4 Kendall Haven Story Proof: The Science Behind the Startling Power of Story 17 (2007). 2 Here is another example. I received a call from dispatch about a possible drunk driver on Hwy 18 driving a red pickup. I responded to the area and located the vehicle. I pulled in behind the pickup and observed the vehicle cross the center line on three occasions. I turned on my emergency equipment and pulled it over. This is not a story. "Just because the events occur in chronological order, it does not necessarily mean those events create a story. Such a narrative will fail to hold an audience's attention for more than the shortest period of time."5 B. Story Defined As you can see from the narrative example, just telling what happened to Jane doesn't trigger an empathic-emotional response, other than perhaps some degree of pity, which isn't the emotional connection you seek from your jurors. In describing what is story, author and film director Michael Welles Schock writes, "A story is a series of events about human beings dealing with a problem, unified by a premise, told in a structured order."6 Author and professional storyteller Kendell Haven provides one of the best working definitions of story – "Story: A detailed, character-based narration of a character's struggles to overcome obstacles and reach an important goal."7 If plot is what the protagonist does, her character is defined by her actions. We learn about her personality through her actions. Let's break down Haven's definition into its individual parts so we can understand what our jurors need from our client's story. 1. A detailed . Specifics persuade, generalities don't.