Persuading through storytelling in the moment, unfoldment, and happy endings
The National Criminal Defense College and the Trial Lawyers College heavily focus on storytelling throughout the trial. Most people organize their thoughts and decision making along storytelling lines. Most law schools try in a huge number of respects to teach students to unlearn their humanity, think logically in all respects, argue both sides of a case with equal persuasion, and leave feelings at the door. How many non-lawyers, though, make decisions as unfeeling technocrats, divorced from humanity, storytelling, and common sense? How many people distrust lawyers by seeing them as hired guns who will argue on behalf of the highest-bidding potential client rather than from their conscience? Consequently, the NCDC and TLC help lawyers get back on the path to being humans first, and becoming better lawyers through becoming better humans, including through persuading through storytelling.
Persuading through storytelling within the circle of the story —- including becoming my client as best I can for a substantial chunk of the process of developing the story — and in the moment can feel scary at first, when turning away from the law school method of cold logic. With storytelling, the lawyer often has no choice but to fill in the blanks, just as an improvisational musician needs to find how to fill in the notes. Storytelling in the foregoing fashion is like doing trapeze work without a safety net, or skydiving without a backup parachute, but is exhilarating to see how well it works. The persuasive arguments unfold — a counterpoint to my folding origami peace cranes — from the honesty and passion of storytelling rather than grasping for argumentative straws through cold logic in a sterile way of thinking.
When a lawyer tells a persuasive story, the decisionmakers (judges, juries, and prosecutors (when negotiating)), have less to push against than when the lawyer is arguing from pure legalese. How can one push against an honest story?
To tell a persuasive story requires the lawyer to be fully absorbed with the story, to practice the story, to be in the moment, and to fully know and care about his client. When a lawyer truly believes in his or her client and the client’s cause, s/he is at a better advantage to tell a convincing story. As the amazing pianist Cecil Taylor (whom I have experienced up close and in conversation twice) said: "You practice so you can invent. Discipline? No! The joy of practicing leads you to the celebration of the creation."
With the foregoing backdrop, I recount a successful drug felony sentencing that included substantial storytelling. I do not have any idea how much my presentation had to do with our successful outcome, versus the judge’s view of the case and my client’s busting his butt in fighting for a successful sentencing. I do know that storytelling at this sentencing helped the persuasive story and argument more naturally and honestly unfold.
My client entered a guilty plea to three hand-to-hand cocaine sales to an undercover police officer. I wracked my brains out trying, without success, to figure out how to win such a case before a jury when lawyers in this jurisdiction are not permitted to argue jury nullification, and where the jury pool in this particular county is not the ideal pool for a jury nullification argument.
The voluntary sentencing guidelines in my client’s cocaine sales case called for substantial active incarceration time. The sentencing judge has been known to be one who usually sentences within the guidelines. The amazing SunWolf always reminds me that reality is no obstacle, so I made sentencing arguments geared both to sentencing below the guidelines and to enable my client to do home detention or work release if the sentence were not below the guidelines.
Whenever I defend a client charged with a drug offense, I know I am on the side of the angels, starting with the injustice of the drug wars. More broadly, when I represent any criminal defendant, as long as s/he is not snitching, I know I am on the side of civil liberties. The adrenaline and moral rush that I feel in being on the side that I believe in helps me all the more in summoning my energy, internal best and magic — as emphasized at the National Criminal Defense College — in finding the road to victory.
All well and good, but how to convince a judge to keep my client out of jail on three separate cocaine sales? Our road to fighting for a suspended sentence started with countless hours of preparation by my client, who accepted and fully followed my advice to enter and complete drug education, get weekly clean urine drug tests, perform a huge number of community service hours, get some great recommendation letters, and bring some very upstanding friends to court. On top of that, my client already had a compelling story of pulling himself up by his bootstraps to put himself through several semesters of college before his arrest, and to have his dream intact of finishing college and being a further success in the working world. It helped that, aside from my client’s guilty plea in this case, his criminal record was otherwise crystal clean and he is otherwise an ordinary person leading an ordinary life, as opposed to a life on the edge that might be perceived by a sentencing judges as more at risk of running afoul of the law.
My client’s having given me so many good factors to work with, it was easier for me to weave a compelling story that persuasively unfolded — the opposite of unraveling — at sentencing. Storytelling must permeate the entire defense of a trial — including sentencing if an acquittal is not achieved — including finding the persuasive story, redefining and reframing it as needed, and refining it along the way, all in close teamwork with the client and with brainstorming with other lawyers and non-lawyers. The persuasive story can and must be incorporated into the defendant’s sentencing memorandum filed before the sentencing date, with live argument before the judge requiring being in the moment, reading the judge as best as possible for what the judge’s concerns are about sentencing, and addressing those concerns.
For felony cases, it is common for the judge to order a presentence investigation report. The lawyer must thoroughly prepare the client for the presentence investigation interview with the probation officer, particularly in jurisdictions where judges and PSI writers are reluctant to permit the presence of the criminal defense lawyer at such interviews. A default approach is to tell the PSI writer and client in writing and orally that the client will not discuss the incident for which s/he has been convicted, because that is to be addressed directly to the sentencing judge, without the filter of the PSI writer’s memory, head, perception, and pen. The lawyer must also be ready to contact the defendant’s family members to say that the PSI writer is likely to contact them, to help them anticipate the questions coming in order to minimize their being anything but accurate.
Some PSI writers have a penchant for doing the PSI reports at the last moment. It is essential for criminal defense lawyers to insist on a sufficient time buffer for receiving the PSI report, fully reviewing it with the client, encouraging the PSi writer to correct any incorrect items in the report, and to file exceptions to the report with the court.
Next comes drafting a persuasive sentencing memorandum, one that comes alive with humanizing the client, and that tells a story of how the defendant got to the point in life where s/he committed the crime being sentenced, how the defendant will extricate himself or herself from the factors that caused the crime, and how a happier ending is around the corner if the judge holds probation and a suspended sentence over the defendant’s head as a hammer rather than slamming the defendant with substantial incarceration.
To go to sentencing without a sentencing memorandum — with attached recommendation letters, proof of participation in relevant programs (including drug education programs in drug cases), and other relevant documents — is at a lawyer’s peril and a disservice to the sentencing judge by not giving the judge more time to consider and absorb the material and arguments being presented. Moreover, a judge easily can interrupt oral arguments in court, but cannot interrupt a sentencing memorandum or other legal memoranda.
In this cocaine sales sentencing, I opened with: "This is far from a typical cocaine sentencing." The storytelling arguments unfolded in the moment from there, beginning with my client’s huge homelife obstacles when growing up, moving forward to self-financed college rather than falling by the wayside as a previously at-risk youth, and self-medicating with cocaine to deal with less-than-ideal work conditions. The story continues: An undercover narcotics detective learned about my client’s drug use, befriended him, and later on asked if he could get him some personal-use cocaine. With the impaired judgment of cocaine use and a helping personality, my client obliged the detective’s requests, at a slim profit margin.
Thereafter, we painted a potentially happy ending to which the sentencing judge can contribute. After my client’s arrest — now over a year ago — he has completed drug education, dozens of clean drug tests, and over two hundred community services. He remains gainfully employed, responsibly pays his bills, is a clean and responsible roommate, and continues going out of his way to help his friends in need, and vice-versa. After a financial setback of paying for his attorney in this case, he is increasing his savings to return to school, complete his bachelor’s degree, and excel further with that degree. Between the lines, I am conveying that he can become a poster child of finally transcending the hurdles of a tough childhood followed by a tough spell at self-medicating with cocaine to being a productive, drug-free, and law-abiding member of society (lest I say conformist as well — even in a Brave New World decanted sense, for better or worse — which can make a judge more confident that the defendant will not reoffend).
I continue in the persuasive storytelling mode right into the sentencing hearing. The prosecutor removes a sentencing hurdle by mainly deferring to the judge for sentencing after mentioning that it looks suitable to put my client into a state-run work release program — recommended by the presentence investigation writer — which still involves being incarcerated during non-working hours, for a substantial period of time.
The prosecutor mentions something about environment, possibly that the state work release program could be a beneficial environment for my client. With being in the moment as an essential part of persuasion and storytelling, I seize on the prosecutor’s reference to "environment" with the judge, and proceed to underline how my client has accomplished so much in transcending his at-risk environment that started from childhood.
I prepared my client well in advance of the sentencing hearing to focus on speaking from the heart on how sorry he is for his crime, that the crime was wrong, and that he will fix the problem. So long as my clients stick to that SWF acronym, it is harder for my client to go wrong, including answering any tough questions from the judge, so long as my client is speaking honestly and from the heart, demonstrating true remorse.
Though storytelling in the moment, painting word pictures in the circle of the story, the persuasive argument more naturally unfolds.
Ultimately the judge gave a suspended sentence, even though the voluntary sentencing guidelines call for substantial incarceration.
I have no way to know the extent to which my own efforts led to this spectacular sentence, other than my recommending my client to bust his butt in preparing for sentencing, which my client busted. I do know, though, that the persuasive, in-the-moment storytelling approach is critical to follow throughout all stages of a trial and sentencing.