McElhaney on being a good writer and speaker: let the story pick the words. Glass: and then explain the point.

How do you do what I’ve been writing about — making your thinking clear by avoiding empty phrases that don’t address the really dire questions you face?  My former Case Western Reserve colleague Jim McElhaney, who’s literally written the book on Trial Practice, has excellent advice in a column entitled “Stop Sounding Like a Lawyer“: “The first step in becoming a good writer and speaker is to concentrate on the story. Let the story-not the legal theory-pick the words.”

McElhaney does a good job in the article of telling a story and conveying its significance.  Ira Glass (a college classmate –  I have crossed paths throughout my life with remarkably talented and accomplished people without many of those traits rubbing off on me) explains that both a compelling story and reflection upon the story’s significance are necessary to capture an audience’s attention:

The Chief Justice wishes he were Dashiell Hammet.

Coincidentally, yesterday in class a student asked me how legal writers use narrative to persuade audiences.  I gave the driest answer possible: it’s telling the facts in a way that swings the audience your way.  There’s no such thing as an objective story.  If you read a judicial opinion, as soon as the judge writes the facts it becomes apparent from the way the story is shaped which way he’s ruled.  But yesterday the Chief Justice John Roberts engaged in storytelling I don’t think any lawyer other than the Chief Justice could get away with.  Seven of the justices of the Supreme Court refused to hear an appeal from the Pennsylvania Supreme Court’s reversal of the conviction of a man for possession of a controlled substance.  The Pennsylvania Supreme Court had held that there was on the grounds that had not been “probable cause” to arrest the man.  In his dissent from the decision, Roberts wrote as follows:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.  Devlin spotted him: a lone man in the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack [cocaine] in the guy’s pocket. Head downtown and book him. Just another day at the office.

Is there evidence of voting fraud? Not if you look at all the facts.

Lawyers are skeptics not because they are innately skeptical but because they are trained by experience not to trust the first plausible explanation of a given set of facts.

ACORN is very much in the news these days. As the New York Post reports, “The vote of Darnell Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORN’s voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of Elections officials said yesterday. Nash had registered to vote repeatedly from an address that belonged to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to testify.”

News like this provokes Sarah Palin to declare, “The left-wing activist group, ACORN, is now under investigation for voter registration fraud in a number of battleground states… We can’t allow leftist groups like ACORN to steal this election.”

Let’s take a look at this news. First, as my colleague Jonathan Adler points out, “Of course registration fraud and actual voter fraud are not the same thing.” (emphasis added) In other words, the fact someone is fraudulently registered does not mean that he will or can get away with fraudulently voting. In fact, there is no evidence in recent history of any voter fraud involving voting by fraudulently registered voters. Jon would counter that registration fraud makes it impossible or at least very difficult to prove voting fraud.

First, I’m not sure why that’s true. Voting fraud investigations would look into whether people who had voted were properly registered. The same evidence available in the prosecution of registration fraud would therefore be available.

Second, it’s at least suspicious that the eruption of investigations and prosecutions of alleged registration fraud shortly before an election follows so closely the pattern that David Iglesias, the former U.S. Attorney in New Mexico, points to as the background of his firing by the Bush administration. Having investigated such allegations and found them inadequate to support any prosecution for voting fraud, Iglesias was fire, apparently for not following the Republican script. Now the Mukasey Justice Department appointed a special prosecutor to look into the firing of Iglesias and several other U.S. Attorneys.

Iglesias has explained that he was pressured to bring these types of voter fraud claims by Republicans in New Mexico shortly before elections in order, in his view, to influence the elections. He investigated the claims and concluded there was no basis for prosecution. Is there suddenly now evidence for identical prosecutions?

So is there widespread work to get enough fraudulent voters on the rolls to elect Obama? I doubt it. In fact, I am prepared to say, no way.

Addendum:

U.S. Department of Justice crime statistics cast doubt on the existence of widespread voter fraud. According to a report by the Justice Department’s Criminal Division on prosecutions between October 2002 and September 2005, the Justice Department charged 95 people with “election fraud” and convicted 55. Among those, however, just 17 individuals were convicted for casting fraudulent ballots; cases against three other individuals were pending at the time of the report. Further, on April 12, 2007, The New York Times reported, “Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.”

Additionally, a 2007 report titled “The Truth About Voter Fraud” by New York University’s Brennan Center for Justice stated: “[W]e are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast”:

There have been several documented and widely publicized instances in which registration forms have been fraudulently completed and submitted. But it is extraordinarily difficult to find reported cases in which individuals have submitted registration forms in someone else’s name in order to impersonate them at the polls. Furthermore, most reports of registration fraud do not actually claim that the fraud happens so that ineligible people can vote at the polls. Indeed, we are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast.

How do we explain human beings?

Annette Gordon-Reed, the author of The Hemingses of Monticello: An American Family, is a lawyer as well as a historian. The two avocations mesh well, especially in trying to give coherence to seemingly incoherent ideas. As pointed out in Newsweek, for example, people have floundered in the face of the seemingly inexplicable, including “the idea that Jefferson, a lifelong proponent of emancipation, could own slaves and sustain an intimate relationship with a woman who was not only his property but his dead wife’s half-sister.” Gordon-Reed’s training as a lawyer is the ideal preparation for developing persuasive explanations for what seems “crazy” because when it gets down to it we’re all a bit crazy:

“‘The first thing you learn in law school is people are crazy,’ says [Gordon-Reed], who also teaches history at Rutgers and law at New York Law School. ‘They’ll come into your office and explain their motivation, and it will be totally a lie. They don’t even understand themselves what their motivations are. It’s not all going to fit.’ Historians may think that because their subjects are dead, ‘you don’t have to deal with the consequences of their shattered lives if you’re not for real.’ Lawyers don’t have this luxury. ‘We’re training people to deal with people’s lives. Somebody’s going to go to jail, somebody’s going to lose a child. You have to be for real.’ Which may be how Gordon-Reed takes the stuff of Sally Hemings’s life-the quotidian and the epic-and makes it indelibly real.”

We all, always, are figuring out the stories the world is telling us.

Lawyers understand better than most that putting together a story in one’s mind is the most common everyday act we all engage in. People speak of “proof” and “facts” as if they’re certainties, but lawyers know that “proof” is merely evidence that can only be understood in light of other evidence and that “facts” are not hard and fast things inferred from the evidence. As I tell my students, “We never have God’s videotape.”

But we need to understand the evidence we confront as hard and fast enough to support the decisions we always have to make, whether we’re jurors or just ordinary people making the decisions ordinary people make all the time. And we’re not bad at it; we come to the best story we can given the facts and move forward. The process may almost be like natural selection: our decisions about how to interpret the evidence we have are tested by the consequences those decisions entail, and so our interpretations (we hope) get better as we see our decisions succeed and fail.

In short, the world is a story just like a news story, a movie, or a novel is. And those of us who engage in storytelling know more than a few things about how to put together the evidence to sway our audience in the way we want our audience to be swayed. I wrote the week before last about one pattern humans find compelling.

There are many, many more effective methods of telling stories. Tell the story from the point of view of the person with whom you want your audience to identify. Move what you emphasize to the front of your story, to the front of your paragraphs, and to the front of your sentences. Spend more time on what you want to emphasize. Stay credible. Take what you want to de-emphasize and bury it in the middle of your story, in the middle of a paragraph, and in the middle of a sentence. Better yet, surround that “bad” evidence by good evidence at the beginning and ends of those paragraphs and sentences. Do mention the “bad” facts (if you don’t, some adversary will, which will considerably damage your credibility), but mention them as briefly as possible.

I could go on, but that’s enough for today.

One last thing: how do you decide about the evidence regarding Sarah Palin?

Is she a true agent of change? She’s taken on the establishment in traditionally corrupt Alaska to become one of our ruling party’s rising stars and walks the walk when the real world we all struggle with confronts her. She ran for governor and won against the former Senator who had appointed his own daughter to succeed him in the Senate and is more popular with her constituents than any other governor is among his or hers. When she is faced by the kind of unanticipated smack in the face Reality often doles out — as she has been by her daughter’s pregnancy, a private matter that anyone could face — she shows that she stands by her principles. She opposed the “Bridge to Nowhere,” the project which is synonymous with business as usual in Washington, and she is a political enemy of the corrupt Senator from her own party, Ted Stevens. In short, John McCain showed he really is a true maverick in choosing her.

Or is she this year’s Thomas Eagleton and Geraldine Ferraro rolled into one? She’s a charismatic Christian creationist who would outlaw abortion even in cases of rape and incest. She was a member of a political party that stands for the secession of Alaska, the abolition of all property taxes, and the privatization and exploitation to the hilt of all public lands within the new country. She was elected governor of a state so unpopulated she only needed 115,000 votes to win, and so, while she may be popular there, her popularity hardly shows she is representative of “real” Americans. How could it? She has been governor of that state for less than two years. She believes in abstinence-only education, yet the ineffectiveness of that policy in fighting teen pregnancies is highlighted by her own 17 year old daughter’s pregnancy. She supported the “bridge to nowhere” before she opposed it. She didn’t “take on” the corrupt Ted Stevens, as Lindsey Graham claimed, but, rather, led a major fundraising effort for him. She’s even under investigation for pressuring Alaska’s commissioner of public works to fire the state trooper who was engaged in an acrimonious custody battle with her sister. In short, she is Exhibit A for the defects in John McCain’s decision-making and judgment.

Addendum: from Hilzoy at Obsidian Wings: “Sarah Palin was not registered as a member of the Alaska Independence Party, though TPM Muckraker found that her husband was.“

Gerry Spence on being a lawyer and a human being.

Gerry Spence is as good a lawyer and compelling an advocate as I have ever witnessed. He now has a blog. If you’re interested in being an effective lawyer, it’s a must read. If you’re interested in how life really works, it’s just as important. I am pleased too that his views on certain matters are similar to mine. Here’s what he writes:

The trial of a case, in its simplest form, is telling a story jurors can understand. Yet most lawyers are taught little, if anything, about communicating with others. They are taught to deny their feelings and, at last, have so long shielded themselves against their feelings that many find it nearly impossible to get in touch with them. Yet justice is a feeling and jurors (as do we all) make their decisions based on their feelings.

Most lawyers know little about classical literature and history, have never written a poem, have never painted a picture, have never stood before an audience and sung a song, have never been permitted to confess their pain or their love, and, in short, have been denied the stuff of personhood. One need not write poetry or paint pictures to be a successful human being. But some intimacy with the arts and the language and its use and with right brain functions of feeling and creativity are essential to the development of the whole person. Little wonder that lawyers, disabled by all of the stifling, mostly useless mental exercises they have suffered, have trouble relating to jurors, much less to the rest of mankind.

Effective Storytelling, McDonald’s Coffee, and the Law

That effective stories arise from a relatively limited set of recurring patterns is no secret. The existence of these archetypes may be one more blow to the Romantic myth that creativity grows out of individual genius, but, as regular readers of this page will learn, I don’t believe creativity arises, divinely inspired, from individual geniuses.

But creative lawyers know the patterns of effective stories, as I was reminded again the other day when I read Alexander Star’s review of Charles Tilly’s Credit and Blame. Star writes:

Reflecting on tort cases, Tilly suggests that we possess something like an “all-purpose justice detector.” When something good or bad happens, we measure the magnitude of the change, identify an agent who helped bring it about and assess how the agent’s skills, knowledge and intentions figure in the result. How much blame does the Ford Motor Company deserve when an Explorer rolls over on the highway? The answer, Tilly writes, depends on how badly the driver or passenger was injured, whether Ford should have known the crash was likely to happen and whether it intended to build the car the way it did. Lawyers argue this way in civil suits, but couples apply similar rules of thumb when they argue over who left the car windows down.

I think it is very astute of Tilly to identify this pattern of blame in tort cases: (1) how badly was the plaintiff injured, (2) should the defendant have known the injury was likely to happen, and (3) did the defendant intend to create the likelihood of the injury.

An excellent example of this pattern at work is the infamous McDonald’s Coffee Case, the inspiration for the Stella Awards, which “were inspired by Stella Liebeck, who in 1992, aged 79, spilled a cup of McDonald’s coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million dollars in damages.”

Just last week at physical therapy for rapidly improving sciatica (thanks to my outstanding physical therapists), I was teased again with the way the McDonald’s Coffee Case exemplifies the supposed idiocy of the personal injury system. The physical therapists know I’m a law professor. How can I blame them? Tilly’s pattern explains their reactions perfectly: they must think the following: (1) How bad could the injury have been? We’ve all spilled coffee on ourselves. (2) Even if the injuries were bad, how could McDonald’s have known? Again, we’ve all spilled coffee on ourselves, and who among us have suffered burns meriting $2.9 million in damages? (3) McDonald’s sells coffee! How could it possibly have intended to burn Ms. Liebeck, when all it intended was to caffeinate her?

But a jury awarded Ms. Liebeck $200,000 in compensatory damages; this amount was reduced by 20 percent (to $160,000) because the jury found her 20 percent at fault. The jury also awarded her $2.7 million in punitive damages — but the judge later reduced that amount to $480,000, or three times the “actual” damages that were awarded. And that amount was compromised in a confidential settlement that resolved the appeal.

Were the jurors, judges, and lawyers who resolved this case simply insane? Are all the people who refer to the case when decrying the U.S. justice system just so much smarter than those people?

Ah, there’s another way of looking at the story, the way lawyers, juries, and judges look at cases they actually decide: through the evidence, and the evidence (as with the other facts from Ms. Lubieck’s case in this posti, from the True Stella Awards site) , viewed through Tilly’s paradigm, tell a very different story:

(1) How badly was Ms. Lubieck injured?

She ” was burned badly (some sources say six percent of her skin was burned, other sources say 16 percent was) and needed two years of treatment and rehabilitation, including skin grafts. McDonald’s refused an offer to settle with her for $20,000 in medical costs.”

(2) Did McDonald’s know the injury was likely to happen?

From 1982 to 1992, McDonald’s coffee burned more than 700 people, usually slightly but sometimes seriously, resulting in some number of other claims and lawsuits.

(3) Did McDonald’s intend to create the likelihood of injury?

McDonald’s quality control managers specified that its coffee should be served at 180-190 degrees Fahrenheit. Liquids at that temperature can cause third-degree burns in 2-7 seconds. Such burns require skin grafting, debridement and whirlpool treatments to heal, and the resulting scarring is typically permanent.

Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature, admitted that it did not warn customers of this risk, could offer no explanation as to why it did not, and testified that it did not intend to turn down the heat even though it admitted that its coffee is “not fit for consumption” when sold because it is too hot.

I’m not arguing that Ms. Liebeck’s case constituted the epitome of justice. As William Gaddis wrote, “Justice? – you get justice in the next world, in this world, you have the law.” What I am saying is that we are human, and we respond to the evidence we are told in the way we are told it. Effective lawyers know these truths. All truly creative people do.