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by Chad Baruch
Johnston Tobey Baruch

I.     INTRODUCTION: WHY STORYTELLING?

The past decade has seen a proliferation of articles and seminar presentations focused on storytelling in the law. Of course, trial lawyers always have known the importance of telling a good story to the jury. But now, lawyers in all areas of the law—from appeals to contracts—are being encouraged to incorporate storytelling into their work.

None of this should be a surprise. We all respond well to stories. Indeed, we each consider our own lives as stories—we serve as our own personal protagonists. Not surprisingly, then, empirical research suggests that appellate briefs incorporating storytelling techniques exert greater influence on judges. See Kenneth Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. of the Ass’n of Legal Writing Directors 1 (2010).

Consider one of the greatest introductions to an oral argument in Supreme Court history, from Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004), known popularly as the “Pledge of Allegiance case.”  Michael Newdow, an atheist, sued his young daughter’s school district alleging that daily recitation of the Pledge of Allegiance violated the Establishment Clause.  Mr. Newdow represented himself in the U.S. Supreme Court, and began his argument with a very simple but compelling introduction:

I am an atheist.  I don’t believe in God.  And every school morning, my child is asked to stand up, face the flag, put her hand over her heart, and say that her father is wrong.

PETER IRONS, GOD ON TRIAL 252 (2007). In three short sentences, Mr. Newdow presented the critical facts, summarized his arguments, and told his personal story.

Or, think about the most influential piece of literature in human history: the Bible. It presents lessons and directives not in abstract discussions but through stories about people.

To be sure, writing stories and presenting facts in the legal setting aren’t always exactly the same. Legal writers often must front-load information, while writers can build suspense or allow for mystery. But at least some principles of storytelling can improve legal writing and presentation. This article briefly recounts some of those principles.

II.   CREATING FACTS VS. RECOUNTING THEM

When John Grisham writes a legal thriller, he gets to create any facts he wants. If Mitchell McDeere needs to survive against insurmountable odds, he does. But when H.W. Brands writes a presidential biography, he doesn’t have the same luxury. No matter how much Brands may wish otherwise, the British burn the White House, Lincoln gets assassinated, and thousands of American soldiers die at Pearl Harbor. To be sure, Grisham and Brands may employ similar literary and stylistic devices. But only one of them gets to create facts.

The obvious assumption, then, is that legal storytelling always resembles nonfiction writing and has little relationship to fiction. Or, at least that’s true when it comes to the facts.

Often, the assumption proves correct. But not always. Sometimes, you as the lawyer do have the power to create the facts you later will recount as part of your story. Consider a motion to compel a deposition. The power of your story likely depends principally on the extent of your efforts to secure the deposition voluntarily before seeking to compel it. In that situation, you are the creator of at least some of the facts you later will recount. So, make them good ones.

The same principle applies throughout the litigation process. Take a motion for summary judgment, where “the story” depends entirely on the facts properly introduced through admissible evidence. The facts you chose to include or omit create the story you will tell. Of course, you remain cabined by what actually occurred. But you still have some power to create facts. So, use that power wisely.

III.  TELLING A GOOD STORY

A.    Tell Your Story—Not Theirs.
Every piece of legal writing has at least three potential stories: the story of the facts (what happened); the story of the law (is it constitutional, just, or open to interpretation?); and the story of the case (procedural grounds for decision). Which story you choose should depend in large measure on the nature and strength of each side’s case.

In one case, we told simply to begin with a chronological narrative of what happened—the facts and nothing but the facts:

On November 16, 2012, Dallas 911 received two telephone calls from two different cell phone numbers seeking emergency assistance for drug overdoses in two different apartments in the same complex. The calls arrived within ten minutes of each other. The second call sought assistance for John Doe. After receiving the Doe address, the dispatcher confirmed to the caller that responders were on their way. The call then was disconnected.

Upon arriving at the scene, emergency responders went to the apartment associated with the first call. They apparently believed that both calls concerned the same overdose—even though the calls referred to different apartment numbers. John Doe never received emergency treatment; he survived in the apartment for six hours before dying.

But in another case, the facts lacked context without an explanation of the underlying law. Our client’s story was exceptionally compelling. But we were telling it to the United States Supreme Court. That Court would not grant review absent jurisprudential importance. So, our story had to have a legal component. The story we told, reduced to its essence, was: Your previous decision in this area lacked sufficient clarity. Confusion reigns. People like our client are paying an egregious price for that confusion. Here is the legal context we provided before beginning our client’s story:

This case presents issues bedeviling indigent parents in Texas and other states facing termination of their parental rights in the wake of this Court’s decision in Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981), holding that due process does not necessarily require court-appointed counsel for indigent parents in termination actions. In response to Lassiter, most states enacted statutes providing court-appointed counsel to indigent parents resisting termination actions. But Texas guarantees counsel only in State-initiated termination actions—not in actions filed by private parties, even where those private parties obtained standing as guardians or custodians through State action.

Statutory Background. In Texas, the State and certain private parties may file actions seeking termination of parental rights. Tex. Fam. Code Ann. §§ 102.003(a)(12), 161.003 (Vernon 2002 & Supp. 2008). After Lassiter, Texas guaranteed court-appointed counsel by statute to all indigent parents facing termination actions. But in 2003, the Texas Legislature amended the statute to guarantee counsel only in State-initiated termination actions; in privately-initiated actions, appointment of counsel is discretionary. Ibid §§ 107.013, 107.021.

Factual Background and Trial Court Proceedings. B.T. was born on January 1, 2003. The Texas Department of Protective and Regulatory Services removed B.T. from the custody of her mother, Jane Thomas, at birth following a positive drug test and filed a termination action against Ms. Thomas in Tarrant County. The Department then placed B.T. with foster parents David and Sheretta Martin.

Finally, some cases really are about the procedural facts of the litigation. Here is an example from a recent brief where that was the situation:

The legal principle proposed by Justice Jones in his dissent from the denial of mandamus relief may be a sound one. But courts don’t create rules by judicial decision unless they are resolving a question properly at issue in the case before them. The evidence here doesn’t implicate the issue addressed by the rule, and thus cannot support its enunciation—at least in this case. Smith’s lone asserted objection to producing the video was its alleged possible illegality. She bore the burden of tendering evidence to support that objection, which she admitted rested solely on her allegation of Johnson’s purported incriminating message that the video depicts a minor.

Smith sought to fulfill her evidentiary burden by tendering an affidavit—testifying about the purported message—in response to Johnson’s motion to compel. But she failed to file that affidavit at least seven days before the hearing as required. And then, she failed to introduce any evidence during the hearing. The trial court was entitled not to consider Smith’s affidavit due to its tardiness. Indeed, that tardiness—along with the absence of any reference to Smith’s response or affidavit in the order granting Johnson’s motion to compel—imposes a presumption that the trial court did not consider it.

With Smith having failed to properly tender any evidence in support of her objection—including any evidence that the video might depict child pornography—the trial court could not possibly have abused its discretion in granting Johnson’s motion. On this basis alone, Smith’s petition fails to support enunciation of the dissent’s proposed rule and should be denied.

B.    Choose A Perspective
Sometimes, the most important thing you can do is choose the perspective from which you intend to tell your story. Often, that includes the critical decision of where to begin the story. The preceding section contains an example of a factual statement told simply in chronological order. Here is a slightly different approach, providing background facts and then foreshadowing events to come.

1.    The City operates the Clint Landfill for two decades without flooding downstream properties.

The City of El Paso purchased the Clint Landfill during the 1980s and operated it until 2010.  The City dumped 400,000 tons of trash a year—up to 1,100 tons a day—onto the landfill while it was operational.

The landfill sits at the top of a natural summit. Respondents own properties located below the landfill. Natural waterways known as arroyos run from the landfill to those properties.

Historically, respondents’ properties were subject only to ordinary water runoff from more elevated surrounding areas—but not to flooding. Indeed, the City operated the landfill for two decades—from 1983 to 2002—without flooding respondents’ properties.

Then, as the landfill grew ever closer to reaching its capacity, there came a series of three escalating flood events in just four years.

C.    Don’t Just Ignore Their Story.
As previously noted, you want to tell your story rather than the merits. At the same time, you can’t simply ignore their story either. There are different ways of addressing and discounting the other side’s story. Here is an example of the late Ruth Bader Ginsburg explaining that one side is telling a story designed to evade the real issue:

The issue in this case is not whether the Constitution compels the University to adopt a special admission program for minorities, but only whether the Constitution permits the University to pursue that course.

JOHN GUBERMAN, POINT MADE: HOW TO WRITE LIKE THE NATION’S TOP ADVOCATES 39 (2nd ed. 2014).

Another option is to attack their story within the context of telling yours. That is the approach we took in the case mentioned above, involving flooding caused by a municipal landfill. Our story was about a series of escalating floods events as the landfill neared capacity. The city’s story was about its repeated efforts to prevent flooding. We addressed the city’s remedial measures—its story—within the context of telling ours:

The City’s brief trumpets remedial measures after the 2004 storm. But Smyth’s testimony was not so glowing or optimistic; she said the landfill implemented these measures to slow future flooding “as best as possible.”

Moreover, TCEQ rejected two of the City’s remedial measures. After the 2004 storm, the City installed massive tractor tires as velocity inhibitors and created a stormwater-runoff trench. But TCEQ disallowed both protective measures and forced the City to remove them.

Smyth admitted knowing that—even with remedial measures—the landfill could not handle a storm like the one in 2006. She tried to explain this away by citing the supposed severity of the 2006 storm:

Q.    So you knew it wouldn’t handle the intensity of rainstorms like had occurred in 2006, right?

A.    Right. That’s typically not what El Paso rain is though, so—

In its brief, the City parrots Smyth’s claim that the 2006 storm was far more severe than those in 2002 and 2004. And perhaps that was true in parts of El Paso. But respondent Guadalupe Ramirez testified that all three storms—2002, 2004, and 2006—were the same over the landfill, and he denied that the 2006 storm was especially intense there. As he said: “The rain was the same. The only difference was we got all the sand and trash.”

Further undermining the City’s effort to blame prolonged heavy rain, Ramirez testified that the bulk of flooding on his property occurred during the first day of the storm—before the second day of purportedly catastrophic rains that the City cites in its brief.

Here is another example of this approach, from a defamation case concerning a magazine article:

In its brief, the Magazine says the article “does not state that Jones committed fraud or any other crime in obtaining SNAP benefits.” But next to the title—referring to Sara as the “welfare queen”—the article displays Sara’s mug shot with the caption: “Glamor Shot: Sara Jones was arrested for theft in Collin County.” Next to Sara’s photo, the article explains how Collin County treats “perps.” And it fails to identify the reason for the arrest—thus implying that it related to welfare fraud. The article reinforces this implication by saying Sara “has received a cool $10,276.”

Whitson testified that she chose to remain anonymous because her friend and source for the story, Dora Dulles, told her Sara “could have been engaged in harmful activities.” But Johnson contradicted this claim, testifying that Whitson insisted on remaining anonymous “because of how intimately [she and Sara] knew each other, and their kids attended the same school.” Yet despite telling Johnson how “intimately” she knew Sara, Whitson testified that she has never met Sara.

D.    Know the Elements of Good Stories.
Goods stories generally have the same elements in common. They have strong characters, the creation of a conflict among them, and resolution of that conflict. It stands to reason, then, that strong legal storytelling would incorporate these same elements. Have good characters. Explain the conflict that arose between them. Then, recount its resolution in a way that supports your argument about the need to either sustain or overturn it.

E.    Understand Timing.
The best way to tell a story often is simple chronology—just telling the story the way it happened. But other ways may be compelling in certain circumstances. In some situations, you might choose to start the story at the end before going back and explaining its origins. Present the reader with the critical event, and then explain how it came about.

We took this approach in a recent case alleging defamation in connection with a popular true-crime television series. Instead of telling the story chronologically, we thought it more powerful to start with the numerous facts known to the producers before airing the disputed episode. We wanted the justices to read the facts having already formed the question: how could the producers have aired this episode knowing what they indisputably knew? Here is how we began:

By June 2019—well before completing and airing Abuse!—ABC Production Company possessed an order from the guardianship court sanctioning Jenny, Mary, and John based on findings that:

• John repeatedly and knowingly filed pleadings containing false statements;
• John filed pleadings in other court proceedings falsely claiming to be David’s attorney despite a court order stating he lacked authority to do so;
• John instituted a separate proceeding—without informing David’s guardians or the guardianship court—seeking to have David adopt Jenny’s adult children while failing to disclose the guardianship or the judicial finding of David’s total incapacitation to the adoption court;
• Jenny and Mary participated in those adoption proceedings but likewise failed to disclose the finding of David’s total incapacitation to the adoption court;
• Jenny swore under oath multiple times that she was not David’s common-law wife before changing her story to claim a common-law marriage (the order cited the portions of the record where she had done so, permitting this conflicting testimony to be verified easily);
• John and Jenny engaged in a scheme to have David marry Jenny secretly in another county in violation of court orders;
• David never was married to Jenny, either by a valid ceremonial marriage or under the common law;
• John filed groundless pleadings to try and secure David’s assets for Jenny’s personal use;
• John, Jenny, and Mary violated multiple court orders by, among other things, concealing David’s assets;
• Jenny converted David’s assets for her own benefit;
• John, Jenny, and Mary presented a fraudulent lease instrument to another court in an effort to gain control of David’s property;
• John and Jenny presented false information to the Social Security Administration in an effort to have Jenny collect David’s social security benefits;
• John and Jenny engaged in a “vexatious litigation campaign involving litigation against David and his property, the Guardians, and the Court . . . .”;
• Jenny and Mary “provided false testimony [and] made conflicting sworn statements” that evidenced “a complete disregard for their obligation to be truthful” without “any concern for the sanctity of their oath; that they will testify to whatever facts are necessary for the moment to achieve their purposes . . . .”;
• Mary harassed and verbally abused court staff;
• John, Jenny, and Mary perpetrated “a fraud” upon the guardianship court and courts in three other proceedings; and
• the guardianship estate incurred more than $200,000 in legal fees to address wrongful conduct by John, Jenny, and Mary.

F.    Good Stories Posit Values.
We will talk about theme in a moment. But in addition to having an overall theme, good stories embody traditional values. Search for the values embodied by your main character, the values flouted by your adversary, or the legal principle you wish the court to adopt. Examples of common values include:

Accountability and Personal Responsibility
Honesty and Integrity
Perseverance
Compassion
Kindness
Fairness
Self-Reliance
Competence
Diversity

G.   Good Stories Have Memorable Characters

Is your client the hero of your story? Is your adversary the villain? Here is an example of the beginning of a brief we prepared presenting our client as the hero of the story:

On May 2, 2011, plaintiff Mark Owen rounded a corner in a dark home in Pakistan, peered through an open bedroom door, and shot Osama Bin Laden dead.

On the other hand, here is an example of a brief where we presented our adversary as the villain:

On November 19, 1996, Bernhardt Tiede shot 81-year-old Marjorie Nugent in the back as she bent down to pet her dog. Tiede then walked acjohn the room and shot Marjorie three more times at point-blank range as she lay terrified and helpless on the floor. Tiede stuffed Marjorie’s body into a freezer, covered it with frozen vegetables, and went out for pizza with friends.

H.   Good Stories Resemble Narratives We Know.
Good stories often fall into well-known narratives. We know the story and identify with it because we have heard it before. While it isn’t always possible, sometimes you can tell your story in a way that ties it to stories we know and have heard many times. Some common and recurrent narratives that make for compelling stories include:

Fighting City Hall
David vs. Goliath
The Hero’s Quest
Battling Injustice
The Innovator
A Self-Made American
The Shakespearean Tragedy
The Whistleblower

Here is an example of a brief we filed during the pandemic challenging what our clients alleged was a county sheriff’s refusal to protect them from illness. We chose to place the sheriff’s actions within the context of well-known stories about different sheriffs in American history.

America’s sheriffs have a long and illustrious history of protecting the prisoners in their care—even at risk of their own lives. For example, Wyatt and Virgil Earp (with an assist from Doc Holliday) famously protected an accused killer awaiting trial from a lynch mob in Tombstone. See TOM CLAVIN, TOMBSTONE: THE EARP BROTHERS, DOC HOLLIDAY, AND THE VENDETTA RIDE FROM HELL 161–63 (2020).

Conversely, some of the lowest moments in the history of American law enforcement concern sheriffs who failed to protect prisoners in their jails. See, e.g., MARK CURRIDEN & LEROY PHILLIPS JR., CONTEMPT OF COURT: THE TURN-OF-THE-CENTURY LYNCHING THAT LAUNCHED A HUNDRED YEARS OF FEDERALISM (1999).

In Texas, systemic failures in the care of prisoners in county jails led the legislature to establish the Texas Commission on Jail Standards to ensure that all county jail facilities meet certain minimum standards of operation—some of the very standards at issue here because Dallas County Sheriff Marion Brown refuses to abide by them.

Sheriff Brown doesn’t have to stare down an armed lynch mob like the Earps. But the threat posed to her prisoners by COVID-19 is no less deadly. And she refuses to protect them from it.

I.     Good Stories Incorporate Universal Themes
During his confirmation process in the Senate, Chief Justice John Roberts famously pledged “to call balls and strikes, and not to pitch or bat.” Although the Supreme Court’s jurisdiction does not extend to overseeing baseball games, this reference instantly evoked a familiar theme: the judge as neutral arbiter, dispassionate and able to rise above partisan politics.

Given his background as one of the nation’s leading appellate practitioners, it is not surprising that Chief Justice Roberts grasped the importance of theme. The best appellate lawyers invest substantial effort in selecting and utilizing powerful themes in their briefs. This article offers a few tips on how you can too.

In selecting a theme, strive for universality. Your theme should evoke common values or cultural norms recognizable to everyone. Selecting a compelling theme often begins with answering two questions. First, what is your appeal about? And second, why should your client win? If you can answer each question in one sentence, you are well on the way to developing an appellate theme. Indeed, you sometimes can use this “what-the-appeal-is-about” approach in your opening sentence. For example, you might begin the introduction to your brief with a statement like this: “This appeal is about buyer’s remorse.”

Common sources for universal themes include the Bible, well-known works of literature, children’s stories, commercial slogans, and common sayings. One source I have found useful is Robert Fulghum’s best-selling book, All I Really Need to Know I Learned in Kindergarten. For example, everyone understands this simple lesson we all learned as children: “If you mess it up, you clean it up.”

Sometimes, you can kick-start a theme using musical lyrics. The brief in an appeal involving division of a large contingent fee might invoke rock-and-roll hall of famer Notorious B.I.G.’s observation that “the more money we come across, the more problems we see.” Or an appeal involving the necessity for expert-witness testimony could cite Bob Dylan for the proposition that “[y]ou don’t need a weatherman to tell you which way the wind blows.” Bob Dylan, Subterranean Homesick Blues, on BRINGING IT ALL BACK HOME (Columbia Records 1965). When you read that, you understand the legal “story.” A federal judge deciding a reapportionment case noted “the inescapable conclusion that a Latino opportunity district will be possible in Harris County in the foreseeable future,” and cited Bob Dylan in concluding that “the times, they are a changing’ . . . .” Rodriguez v. Harris Cnty., 964 F. Supp. 2d 686, 805 (S.D. Tex. 2013) (citing Bob Dylan, The Times They Are a–Changin’, on THE TIMES THEY ARE A-CHANGIN’ (Columbia Records 1964)).

Occasionally your theme may have more to do with the procedural posture of the case or deficiencies in your opponent’s approach than the underlying merits. Your theme might focus on evidentiary deficiencies, an improper approach under the standard of review, or a dispute over the scope of the appellate issue. I recently handled an appeal concerning whether intermediate appellate courts have the discretion to request supplemental briefing on an unchallenged ground for summary judgment. A central theme of my brief was that the case did not concern whether an appellate court must order such briefing but only whether it may do so. In other words, our theme was that the other side sought to cast the issue in broader terms than the case really presented.

Sometimes, the theme may center on the effect of the court’s decision. Would a decision in favor of the other side expand legal duties, or create a new cause of action or defense? Would it result in societal harm? These types of concerns can serve as springboards to an effective appellate theme.

Once you have selected the theme, use it throughout the brief. The most important use of your theme is in the introduction, where you set the tone for everything to follow. But you should continue to harken back to your theme in the statement of facts, statement of issues, and argument. You may even be able to use the theme in section headers. One cautionary note: Your statement of facts should evoke the theme without explicitly discussing it; present the facts in such a way that they play into the theme.

In his acclaimed brief attacking the Affordable Care Act in the United States Supreme Court, former Solicitor General Paul Clement rested his theme on the notion of “unprecedented and unbounded” governmental power. The brief’s very first sentence argued that the Act “imposes new and substantial obligations on every corner of society, from individual to insurers to employers to States.”

Having established this theme at the beginning of his brief, Clement used the words unprecedented or unbounded nearly 30 times throughout the rest of his brief. He set a powerful theme—and then pounded at it relentlessly. Clement’s brief often is cited by legal-writing experts and appellate practitioners as perhaps the best filed in the Supreme Court over the past decade.

In the end, formulating a theme occasionally comes easily but usually engenders a great deal of thought and time. Sometimes, it may even involve “pitching” two or three possible themes to friends and colleagues to gauge their reactions. But the payoff justifies the effort—a compelling theme anchors the remainder of the brief. So, happy theming!

J.    Be Scrupulously Accurate.
Telling a story doesn’t mean writing fiction. To the contrary, in the legal setting, your story often is developed through painstaking document review and extensive discovery. Maintain credibility by being unerringly accurate.

IV.   FINAL THOUGHTS

A.    Keeping Up Appearances.
Don’t forget an important part of telling your client’s story: Formatting matters. Publishing houses devote great attention things like font choice, margins, and formatting for a reason. You should too.

To enhance readability, prepare documents in a serif typeface (serif refers to the lines or curves at the top and bottom of a letter) like Times New Roman or Garamond.  Avoid using Courier and Arial.  Whatever typeface you choose, use at least 12-point font.

A contract prepared in Garamond is readable.

A contract prepared in Courier is not.

Neither is Arial.

Also, provide some white space. Magazine editors know that the intelligent use of white space pleases the human eye and enhances readability.  Use enough white space in your contracts that the reader’s eye gets a break from the text.  Place this white space strategically throughout the contract to prevent the reader from being overwhelmed by text.

B.    Ruthless Editing.
The best story in the world requires careful editing. If a fact doesn’t advance the story or otherwise provide information essential to decision, it has to go. ♦

Chad Baruch | Former Texas Bar College Board Director and 20-Year College Fellow
Chad Baruch is certified in civil appellate law by the Texas Board of Legal Specialization. A longtime solo practitioner, Baruch is now a shareholder in Johnston Tobey Baruch in Dallas. Baruch has served as chair of the State Bar Board of Directors and the Texas Bar College, Council of Chairs, Consumer and Commercial Law Section, and Individual Rights and Responsibilities Section. Chad’s work has garnered him numerous awards over recent years, including the Texas Bar College Jim Bowmer Professionalism Award in 2019. A frequent continuing legal education speaker, Baruch received the 2015 State Bar of Texas Gene Cavin Award for lifetime contributions to CLE and the 2016 Texas Bar Foundation Dan Rugeley Price Memorial Award for excellence in legal writing and commitment to the profession. The Texas Access to Justice Commission has named him a Pro Bono Champion. Alongside his legal career, Baruch has served as a college and high school head basketball coach and government teacher. He received a bachelor’s degree from the University of Minnesota and his law degree from the University of Minnesota Law School.

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