Listen Like a Lawyer will be delving into communication and writing in the next few posts. One reason this blog is generally dedicated to listening is that there are already many excellent legal-writing blogs available for the legal community. (For example: Forma Legalis, Lady Legal Writer, Law Prose, Legible, and Ziff Blog, just to cite a few.) The writing-related posts here will connect to broad communication themes such as voice, empathy, and the relationship between senior and junior lawyers emerging from a lot of writing and talking as well as reading and listening.
Law professor Philip N. Meyer once did an unusual thing: he spent thirteen weeks observing a federal jury trial on a daily basis. Day after day throughout an entire summer, Meyer sat as a watcher and listener, taking in the spectacle of the trial and everything it entailed—from the painful moments to the surprisingly lighthearted. Leaving court late at night, he spied the lead defense lawyer sitting alone in a car in a remote parking lot with the windows rolled up, practicing his closing argument. This experience is just one of many inspirations for his book Storytelling for Lawyers (Oxford 2014).
Storytelling for Lawyers has neither a chapter on listening nor an index entry on listening. The book is about talking and writing—in other words, producing—narratives, much more than listening as such. But Meyer mentions listening on page 2, talking about his work as a trial lawyer:
I learned to watch and listen to how my audience listened to me, and I would respond to their concerns, reshaping my stories to fit the shape of their imagining.
The book is about crafting stories that will resonate with audiences, whether at trial or in motions practice. So I recommend it.
But now let me get to the point of this post and why I titled it “Future trial lawyers, take heart.” Meyer teaches a variety of classes including doctrinal classes in criminal law and torts. In his chapter on voice and style, he begins with a reflection on what it’s like to grade law-school examinations:
As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem.
The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.)
Meyer goes on to explain that the voice and style of top law school examinations “clamp down” on the facts, use clean organization, and employ the King’s English. The student’s voice must be neutral and must not call attention to itself. “A” exams certainly don’t use colloquialism or humor. And they don’t explore the story embedded within the exam hypothetical in any depth. Meyer quotes a former student describing the events in an exam as “floating factoids.”
This is just one professor’s reflection on his experience grading exams, and he prefaces all of this by saying he grades holistically rather than with a detailed objective checklist. Still, it’s refreshingly transparent and I think every law student should read this—especially those just receiving their first round of law-school grades.
Law students who want to get into the courtroom and try cases may be disappointed that the skills distinguishing great trial lawyers maybe aren’t really tested in this (very popular and prevalent) type of law-school exam. That disconnect is the subject of discussion, critique, and reform, and more discussion, critique, and reform. The positive side here is that Meyer’s reflection invites law students to understand their grades as only loosely related (if there is much of any relationship) to how they might expect to perform in court.
Meyer’s reflection on the emasculated role of facts in many law school exams reminded me of an attorney’s recent #PracticeTuesday tweet. Bryan Gividen was responding to a call to bust law students’ myths of what it means to be a lawyer:
First, prelaw students, practicing the law mostly means practicing the facts. With some exceptions (eg the competitive appellate field) /2
— Bryan Gividen (@BryanGivi) December 7, 2016
Working with the facts, crafting the story, developing a voice, testing whether the voice and the story resonate with an audience, all of these tasks are deeply connected with what it means to be a trial lawyer. The best appellate lawyers experiment with all of these things as well, but there are limits: the idea of “clamping down on the facts” by rigorously adhering to the record, and controlling one’s voice for the genre of the appellate brief and the audience of the appellate panel. Gividen draws this line when he identifies competitive appellate work as an exception to “practicing the facts.”
Any law student or lawyer who wants to develop their skills practicing the facts should benefit from studying Storytelling for Lawyers. Meyers concludes the book with a reflection on why law stories are different from stories told by journalists, filmmakers, and artists:
A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome.
Legal storytelling has a rich literature, and anyone intrigued by this brief exploration of Meyer’s book would enjoy delving into the legal storytelling/applied legal storytelling scholarship. One gem is Ruth Anne Robbins’ Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 Seattle L. Rev. 767 (2006). She argues that the client should not look to the judge as the hero and savior; the client should show how they are traversing a series of challenges and need the judge’s help in a mentoring role. The client is the real hero, a flawed hero but a hero nonetheless, seeking to carry on with their larger, bigger, more meaningful challenge. So the judge is not supposed to save the client; the client can save themself if they can just get through this lawsuit and carry on with their larger quest. Thus the opposing party is not the true antagonist but merely a “threshold guardian” impeding the client’s real quest.
Law students can take heart in this advice as well, in understanding their own personal story and quest. Law-school exams are basically a “threshold guardian.” They are a gatekeeping challenge the law student must face in the larger quest for something more meaningful.