A Brief’s Statement of Facts – Tell Story or Not?

Earlier posts covered which facts to put in and which to leave out of an appellate brief. This one covers whether to structure the facts as a story or stick to a bare-bones narrative.

Kenneth D. Chestek did an empirical study on this issue. He prepared a set of “story briefs” using story-telling, which he defines as a detailed, character-based narration of a character’s struggles to overcome obstacles and reach an important goal. He drafted another set of briefs on the same issues as  “information-based narratives” and provided just the essential information without further context. Chestek then sent the briefs to a number of appellate judges, appellate law clerks, appellate staff attorneys, appellate practitioners, and law professors. He asked them which brief was more persuasive.

Most found the story briefs the more persuasive, with the preference for the story brief increasing with the reader’s experience on the job. Chestek preliminarily concluded from these results that “stories work” without attempting to explain how they work.

Jennifer Sheppard of Mercer University followed up on this in a scholarly article. Her survey of developments in cognitive research shows that we subconsciously draw on a pool of “stock stories” that shape our perceptions and reasoning. These stock stories, the article explains, create cognitive shortcuts that cast people, ideas or events into roles.

Given these stock stories’ power, Sheppard advocates that lawyers learn and use basic narrative techniques such as character, conflict, plot, point of view, setting, theme, voice, and style. The article describes how brief writers may use these techniques effectively.

But there are limits to the approach. Jeanne M. Kaiser of Western New England School of Law warns against confusing life with dramatic narrative. Her article explains the obstacles that brief writers face in story-telling by drawing on the problems that traditional non-fiction writers face. Kaiser’s point is that reality too often intrudes on a good story and that structuring a story must account for these unfortunate detours.

What do you think? Is story-telling or the bare-bones narrative better? And if you use story-telling, how do you deal with the intruding reality? Please let me know by leaving a reply or reaching me here.



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