CHICAGO — Whether it’s a tool in your toolkit or an arrow in your quiver, story- telling will win motions, cases and verdicts for you, especially if you put the most positive spin on it and wrap your argument in a darn good story.
That’s the advice that Matthew Fraidin and Faith Mullen gave to more than 600 people at the National Association of Counsel for Children’s 35th National Child Welfare, Juvenile, and Family Law Conference in Chicago recently.
Fraidin and Mullen, law professors at Georgetown University Law Center and the Columbus School of Law at Catholic University, respectively, bemoaned the fact that juvenile justice/child welfare law is steeped in stories of misery, even though there are a lot of good things happening.
“These kids are trapped in a sad narrative, Professor Fraidin said. “They are viewed as fruit that doesn’t fall far from the tree. News stories describe horrible injuries by violent, murderous and monstrous parents. In the foster care system, we’ve created a world based on horror stories. Yet, 70 percent of foster kids are there because of neglect, not abuse, and that neglect often comes from poverty, homelessness, bouncing around and related chronic truancy.
“Yet, he said, “people who live in crummy neighborhoods are often strong and helpful, and kids who go to school from there are bold. Why don’t we emphasize the strengths? Ask not, what are they lacking? Ask instead, what do they have? What can they do? How can they help their situation? Even the most problematic parents can clean a house, walk a dog, visit someone in a nursing home. You empower people when you find their strengths and talk about them that way.”
Two things came to my mind immediately:
In a termination of parental rights trial I presided over, the mother’s attorney was a skilled trial lawyer who had never appeared in dependency court. He made that known in his opening statement. However, he said he was going to weave a story about how much this little girl meant to her mother, what they did together and how they loved each other. In the end, he promised, I would never be able to believe that this mother had caused multiple fractures to her small child. He was right, and it was all due to effective story telling.
Then, I thought of the reaction of many friends and colleagues who read my book, Raised by the Courts: One Judge’s Insight into Juvenile Justice. They remembered the happy stories, the funny kids, the resilient ones, not the tragedies. They liked the story of the 10-year-old boy who grew skilled at throwing bait fish to pelicans, until he was arrested for stealing the bait fish. They remembered the troubled, angry girl who fought with her father, not for that but because she said that I was her favorite judge and she knew she was my favorite kid. I felt bad that I hadn’t spent more time talking to kids. Lawyers who represent or advocate for kids should be asking those kids: Who are you? What makes you laugh? What are your dreams, your goals, your greatest success? Judges should do the same in court, time permitting. It’s not a cliché; indeed, there are two sides to every story.
“Why don’t we tell more happy stories?” asked Professor Mullen. “Maybe because we feel that stories are for juries, and facts and law are for judges. No one wants to be a Pollyanna, but lawyer sophistication and cynicism blocks story telling.”
Professor Mullen explained how to “harness the power of stories” by having a real conversation with your client, then affirmatively shaping the client, while knowing the rules, statutes and case law. “Ask yourself,” she said, “if the client knew what I know about the law, and what she knows about the case, what would be presented to the judge?”
To make a story persuasive, she ended; it must be authentic in the details, broad in coverage, and consistent so that it makes sense. In other words, believable.
Believe me, stories work. I just hadn’t thought about it that way in quite a while.