At the end of July, both Professor Michael Smith and I attended the Applied Legal Storytelling Conference at Lewis and Clark Law School in Portland, Oregon. The conference was entitled “Chapter 2: Once Upon a Legal Story” and focused on storytelling in “ways that will directly and tangibly benefit law students (i.e. future lawyers) and legal practitioners (i.e. former law students).” The presentations I attended addressed ways to use storytelling to create a stronger narrative theme in a case and how to handle the ethical issues in storytelling.
One of the most intriguing presentations was Professor Kenneth Chestek’s talk “Judging by the Numbers: an Empirical Study of the Power of Story.” Professor Chestek conducted a study where he wrote four fictional test briefs: two that focused heavily on stating the law and applying it (the “pure logos” briefs), and two that focused on creating a narrative story into which the law was inserted and applied (the “story” briefs). (He wrote a logos brief and a story brief for both the petitioner and respondent.) Professor Chestek solicited appellate practitioners, appellate judges, appellate judicial law clerks, appellate court staff attorneys, and legal writing professors to read these briefs and rate their strength of persuasion. The participants knew they were taking part in a study, but they did not know who was conducting the study or what the purpose of the study was.
The results showed that overall, as judges and lawyers advance in their careers and gain more experience, they increasingly value the story in the case as a matter of persuasion. For instance, judicial law clerks (with generally less experience) were more likely to focus on the strength of the law, while judges and practitioners (with more experience) found the briefs featuring a narrative storyline to be more persuasive. Another breakdown of the numbers showed that of those practicing for zero to four years, 45.8% of the participants found the logos brief more persuasive, while 54.2% found the story brief more persuasive. In contrast, of those participants practicing for twenty-five years or more, 14.3% found the logos brief more persuasive, while 78.6% found the story brief more persuasive. 7.1% of the twenty-five plus year group found neither more persuasive.
At the conference, Professor Chestek and the attendees considered theories for these results. One idea is that less experienced lawyers are more likely to gravitate to the strength of precedent, while those judges and lawyers may more highly regard the value of the facts of a case. Those judges and lawyers may also value reasoning by analogy more, instead of relying strictly on black letter law.
Professor Chestek is currently writing about his findings in a law review article.
It’s too bad he didn’t also include a third, well-balanced brief for comparison.
Thanks for this post, Melissa.
Sean: That might have been useful, but I chose not to do that, for several reasons. First, I wanted to encourage as much participation as possible. It was asking a lot as it was to have judges read two briefs; adding a third would likely cut down participation.
More substantively, though, I feared that a more “neutral” brief would give respondants an “easy way out.” I would expect a large number of respondants to choose the “middle” brief in that scenario, and that would mean we wouldn’t learn as much from the study. I wanted to learn what was more important to the reader: the logos or the story. And adding a middle choice would have let the respondants off of that hook.