Imagination is more important than knowledge.” — Albert Einstein  

Because stories are so easily understood and memorable, most lawyers know that it is best to conceive of and present their case to the trier of fact as a story. Unfortunately, knowing this and being able to do it are not the same. Still, nearly all litigators and trial attorneys have generated a document that can be the first step to creating a case story: the case chronology, a table of all of the case-relevant events and actions organized by date from oldest to most recent. It lays out all of the events that led up to the lawsuit (and beyond) in a coherent and logical way.   

At the same time, some lawyers mistakenly believe that they are engaging in storytelling when they simply relate the contents of the chronology. The mistake is understandable. All stories involve events that take place over time, so these lawyers figure if they arrange the case facts in the order in which they occurred, they are telling the story of their case. In actuality, a chronology is the most popular non-story told in court. This happened, and then this happened, and then this happened is not a story.

While a chronology may have the appearance of a story in an advocate’s eyes, many of these same facts lead to a very different conclusion from opposing counsel’s the point of view. In other words, the parties see essentially the same facts through different lenses or filters. Thus, the job of the advocate is to weave certain of the chronology’s facts into a compelling narrative that will lead the trier of fact inevitably to a specific (and favorable) interpretation of the case. And, while a chronology is not a story, it can be a good place to start to create one.  

Below is an example intended to demonstrate the difference between a chronology and a story. Based on some very informal polling, My Cousin Vinny is one of the most popular films about law among today’s attorneys. If you are an attorney, it is likely that you remember the climactic scene in which the defense attorney, Mr. Vincent LaGuardia Gambini, with considerable help from his fiancé, Ms. Mona Lisa Vito, saves his cousin and his cousin’s friend from being wrongly convicted of first-degree murder. You know the scene, but here it is as a (slightly abridged) chronology. 


1.  When the prosecution rests, defense counsel, Mr. Gambini, is at a loss for an effective defense for his cousin and his friend who face first degree murder charges and could be sentenced to death. 

2.  And then… Mr. Gambini notices something in a photograph taken by his fiancé, Ms. Vito, of tire marks known to be left by the assailants’ car at the crime scene. 

3.  And then… Gambini asks the judge for a five-minute recess to locate his first witness.  

4.  And then… The judge grants him only a three-minute recess. 

5.  And then… Gambini emerges from the courtroom to find his first witness, Ms. Vito, in the courthouse lobby on a payphone. Gambini pleads with her to go with him back into the courtroom. 

6.  And then… She is still angry over a fight that they had earlier.  

7.  And then… She refuses and tries to leave the courthouse. 

8.  And then… Gambini forcibly takes her into the courtroom.  

9.  And then…She tries to leave. 

10.  And then… Gambini calls her as his expert witness and a bailiff stops her and escorts her to the witness stand.  

11.  And then… Ms. Vito is sworn.

12.  And then… Gambini questions Ms. Vito.  

13.  And then… Ms. Vito, still angry, refuses to respond. 

14.  And then… The judge asks Ms. Vito to respond to Mr. Gambini’s question. 

15.  And then… She does not.  

16.  And then… Mr. Gambini asks the judge for permission to treat Ms. Vito as a hostile witness.

17.  And then… Before the judge can rule, the prosecutor challenges Ms. Vito’s qualifications as an expert witness.  

18.  And then… The prosecutor requests the opportunity to voir dire the witness.

19.  And then… The judge grants the request. 

20.  And then… The prosecutor voir dires the witness, ultimately asking a trick question. 

21.  And then… Ms. Vito sees through the subterfuge and explains why it is a trick question, displaying her expertise.

22.  And then… The prosecutor concludes that she is qualified and accepts the witness.

23.  And then… Mr. Gambini offers into evidence the photograph taken by Ms. Vito of the tire marks.

24.  And then… The prosecutor does not object.

25.  And then… Mr. Gambini shows the witness the photograph and asks her a series of questions about whether his defense theory is correct. 

26.  And then… After careful examination of the photograph, Ms. Vito concludes that “No, the defense is wrong!”

27.  And then… The defendants are deflated.

28.  And then… She offers a completely new theory for the defense’s case, one in which the defendants’ car could not have made the tire marks known to have been left by the assailants. 

29.  And then… The people in the court are confused.

30.  And then… The judge is very curious.

31.  And then… Ms. Vito explains her theory to the Court and shows how the photograph is irrefutable proof that the defendants have been misidentified.

32.  And then… The judge asks if the prosecutor wants to cross-examine the witness.

33.  And then… The prosecutor declines.  

34.  And then… After recalling and questioning two prosecution witnesses, Gambini rests, having proven his clients were mistakenly charged.

35.  And then… The prosecutor drops all charges against the defendants.


Had the screenwriter (Dale Launer) submitted the screenplay for My Cousin Vinny in this form, no one would have been surprised if all the studios passed on it. The reason is that a rather dry recitation of events in chronological order does not a story make.  

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Borrowing from screenwriting, stories can be thought of as having three Acts. Each of these Acts is comprised of Sequences, which in turn are made up of Scenes. Each Scene is made up of Story Beats. Story Beats are the smallest unit of a story, simple statements of an action or event. In other words, what one would typically find in a chronology. What Story Beats lack is the higher-level context of the greater story.

In contrast to chronologies, which are about events, stories are about characters. Characters have backstories, motivations, intentions, but above all else, characters (and specifically main characters) have a problem that they are trying to solve, but there are always obstacles preventing the solution. The conflict created by the main character’s goal and the obstacles that stand in his or her way is the absolutely essential element of all stories.

In Act 1, we are introduced to the main character and the world they live in. At some point generally early on, there is an “inciting incident” which causes a problem the main character must solve or a conflict they must resolve.

In Act 2, we see the main character taking initial steps to overcome the obstacles and solve the problem. These early actions usually have the perverse effect of making matters worse which causes the tension to increase. As the main character makes some progress but suffers setbacks from ever-greater obstacles to solving the problem, the tension continues to build through the end of Act 2. 

At the beginning of Act 3, there is a climactic confrontation, after which the problem is solved, the conflict resolved, and the tension subsides. The main character emerges changed and now lives in a new status quo world.

So, the first thing an attorney should do in converting a chronology into a story is pick the main character of their story.

A word of caution. As discussed in last month’s “The Stand,” there is a tendency for attorneys of all stripes to think of their client as necessarily the main character of their story. It is possible, and often advantageous, to conceive of different stories in which another person involved in a case is the main character. Of course, in many instances, the attorney lacks the detailed information to develop some people involved in a case into a main character. Many of these people will end up in supporting roles. Still, it is important to look creatively at the case. Some of these supporting characters may end up playing unexpectedly central roles in the story, while other characters’ words and actions may need to be reassessed and reinterpreted to flesh out the story, in light of the main character selected.

Another element of choosing the main character is defining the main character’s problem or conflict. The problem or conflict may be with another person or group of people, circumstances, society as a whole, or within the main character themselves. To figure out what the main character’s problem or conflict is, simply ask, “What does he or she want and what is preventing them from getting it?”

This leads to another way in which chronologies are not like stories. Without a story to breathe life into the events listed in the chronology, every event has the same level of significance. Each is an undifferentiated tick mark on a timeline. When thought of as a story, each event has its own level of significance, from meaningless to crucial, contingent on the story the attorney decides to tell.

Once a main character and supporting characters have been chosen and the problem or conflict defined, the next step is to begin to weave the relevant elements of the chronology into a story. 

On this topic, the creators and writers of South Park, Trey Parker and Matt Stone, have come up with a simple yet insightful tip.Watch a YouTube video of them speaking to a class at NYU here. (To those familiar with South Park, not to worry, all of the expletives have been bleeped.) 

Parker and Stone are remarkably creative and prolific story writers. Thus far, they have created nearly 300 episodes of their animated show. Together they have won 5 Emmys for South Park as well as 4 Tonys for Book of Mormon.

As discussed above, the smallest element of a story is called a Story Beat. Parker and Stone caution that lesser writers connect the beats of the story with the word “and,” which makes for extremely boring stories. These stories resemble chronologies: this happens, and then this happens, and then this happens. They advise that whenever possible, rather than “and,” storytellers should strive to link the Story Beats with either the word “but” or the word “therefore.” 

Parker and Stone note that “but” and “therefore” reveal the connection between the Story Beats. “But” means that there is some complication; this happens, but then this happens. “Therefore” means that there is some causation; “This happens; therefore, this happens.” 

Look again at the chronology of the climactic scene of My Cousin Vinny. Nearly all of the phrases “and then” have been replaced with “but” or “therefore.”


 1.  When the prosecution rests, defense counsel (Mr. Gambini) is at a loss for an effective defense for his cousin and his friend who face first degree murder charges and could be sentenced to death.

 2.  BUT… Mr. Gambini notices something in a photograph taken by his fiancé (Ms. Vito) of tire marks known to be left by the assailants’ car at the crime scene.

 3.  THEREFORE… Gambini asks the judge for a five-minute recess to locate his first witness. 

 4.  BUT… The judge grants him only a three-minute recess.

 5.  And then… Gambini emerges from the courtroom to find his first witness, Ms. Vito, in the courthouse lobby on a payphone. Gambini pleads with her to go with him back into the courtroom.

 6.  BUT… She is still angry over a fight that they had earlier. 

 7.  THEREFORE… She refuses and tries to leave the courthouse.

 8.  BUT… Gambini forcibly takes her into the courtroom. 

 9.  BUT…She tries to leave.

 10.  BUT… Gambini calls her as his expert witness and a bailiff stops her and escorts her to the witness stand. 

 11.  THEREFORE… Ms. Vito is sworn.

 12.  And then… Gambini questions Ms. Vito. 

 13.  BUT… Ms. Vito, still angry, refuses to respond.

 14.  THEREFORE… The judge asks Ms. Vito to respond to Mr. Gambini’s question.

 15.  BUT… She does not.  

 16.  THEREFORE… Mr. Gambini asks the judge for permission to treat Ms. Vito as a hostile witness.

 17.  BUT… Before the judge can rule, the prosecutor challenges Ms. Vito’s qualifications as an expert witness.

 18.  THEREFORE… The prosecutor requests the opportunity to voir dire the witness.

 19.  THEREFORE… The judge grants the request.

 20.  THEREFORE… The prosecutor voir dires the witness, ultimately asking a trick question.

 21.  BUT… Ms. Vito sees through the subterfuge and explains why it is a trick question, displaying her expertise.

 22.  THEREFORE… The prosecutor concludes that she is qualified and accepts the witness.

 23.  And then… Mr. Gambini offers into evidence the photograph taken by Ms. Vito of the tire marks.

 24.  BUT… The prosecutor does not object.

 25.  THEREFORE… Mr. Gambini shows the witness the photograph and asks her a series of questions about whether his defense theory is correct. 

 26.  BUT… After careful examination of the photograph, Ms. Vito concludes that “No, the defense is wrong!”

 27.  THEREFORE… The defendants are deflated.

 28.  BUT… She offers a completely new theory for the defense’s case, one in which the defendants’ car could not have made the tire marks known to have been left by the assailants. 

 29.  BUT… The people in the court are confused.

 30.  BUT… The judge is very curious.

 31.  THEREFORE… Ms. Vito explains her theory to the Court and shows how the photograph is irrefutable proof that the defendants have been misidentified.

 32.  BUT… The judge asks if the prosecutor wants to cross-examine the witness.

 33.  BUT… The prosecutor declines.  

 34.  And then… After recalling and questioning two prosecution witnesses, Gambini rests, having proven his clients were mistakenly charged.

 35.  THEREFORE… The prosecutor drops all charges against the defendants.


It’s a simple suggestion, but it will help to weave the case facts into a narrative, converting the chronology into something more resembling a story. 

There are, of course, other considerations in creating the story of your case including setting (time and place), plot (what happens), theme (the story’s meaning), frame (the relevant evidence that undergirds the particular story), and tone (the storyteller’s attitude toward the story or the audience). Although all of these require some conscious attention, many will flow naturally from the decisions about the identity of the main character and nature of their conflict.

However, because cases so often require the trier of fact to judge the actions taken by people involved in the case, the final element discussed here for transforming a chronology into a story is choice.  

We judge characters in stories as we judge all people, by the choices they make. As someone chooses, they are. Vital to the creation of a case story is to identify in the chronology all of the relevant points at which characters make choices, even if the characters themselves were not aware that they were making a choice at the time. The framing of these choices made by the characters on your side as, for instance, heroic, strong, or beneficent as opposed to the other side as cowardly, weak, or malevolent, helps the trier of fact to identify with the characters on your side or distance themselves psychologically from the characters on the opposing side.

Even more importantly, though, if someone on your side in the case story has made a choice that appears objectionable, you must provide the trier of fact with the context, the thought process that the character went through in making that choice. The goal is to reframe it from objectionable to understandable, perhaps driven by the context rather than the character’s nature.

Chronologies are useful to the extent that they simplify and organize the events in a case. However, as discussed, chronologies are not stories and stories are the most effective means of persuading a trier of fact. Converting a chronology into a story requires answering relatively simple questions, although the ramifications of the answers may not be so simple. Questions like: Who is the main character of my story? What do they want? What stands in their way? What choices did they and the other characters make that led to this legal dispute? And, ultimately, who should prevail? You will not find the answers to these sorts of questions in a chronology. However, you can start with a chronology and knowing how to identify the elements of a story and how to tie them together, you too can tell better, more persuasive, stories to the trier of fact.

 

 

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John G. McCabe, Ph.D., is a cognitive psychologist and senior trial consultant. For over fourteen years, John has designed and performed a wide variety of studies (focus groups, mock trials, etc.) related to jury decision-making. Results from these studies have informed trial strategy in a wide variety of civil and criminal cases. He also assists in preparing witnesses, composing voir dire questions, jury selection, writing draft opening statements and closing arguments, developing trial graphics, as well as performing in-court observation and post-trial interviews with actual jurors. He earned his Ph.D. from Claremont, where his research focused exclusively on juror and jury decision-making and bias. In a prior life, John enjoyed a 15-year career in the motion picture industry, where he honed his understanding of storytelling.

John’s writings have been published in prestigious psychology and law journals and he has spoken at numerous national psychology and law conferences, law schools, colleges, bar association meetings, and Inns of Court. He has also published articles in For The DefenseVerdict Magazine, Trial Practice JournalWomen Lawyers JournalOf CounselThe Daily Journal, and TortSource, and his commentary has been published in the Los Angeles TimesLaw360, and Bloomberg News. John has also appeared on television including CNN, HLN, and TruTV, where he discussed jury and juror behavior.