First, he politely asked me to close the door behind me. (That’s almost never a good sign.)
“We need to talk about your closing argument,” he said. “It was weak. Milquetoast. Anybody can get up there and talk about facts. You’ve got to get better.”
His bluntness was like a punch to the gut. While he launched into needlepoint critique, I sat silently, half paying attention, half consumed by rage and embarrassment. I was really taken aback by how harshly he came down on me. But he had to—I was just that stubborn.
At that early stage of my career, I did a decent enough job of latching onto key facts and organizing them into an argument that made sense. The foundation and structure of a good closing argument was there. My delivery of that argument, however, was not. In retrospect, I would say my delivery fell somewhere between awful and uninspiring. I sounded a lot like a college professor giving a snooze-inducing lecture. What I needed to be—as my boss was trying to explain—was a storyteller.
In the weeks and months that followed, I studied. I read Thomas Mauet’s Trial Techniques and Jim Perdue’s Winning with Stories. I got better, but I didn’t get good. I found time to observe just about every closing argument that took place in our little courthouse. I made another small improvement but still found myself a little lacking. I exhausted my local resources and began searching far and wide for something or someone to help me make the leap from fact-reciter to storyteller. Eventually, I found the help that I was looking for in an unlikely place far from the courtroom: The exaggerated and often ridiculous characters from the world of professional wrestling.
Understanding the law, rules of evidence, criminal procedure, and the facts of a case are all important parts of being a competent, ethical prosecutor. Early in my career, I feel like I had a good grip on this aspect of the job. My shortcomings stemmed from my difficulty in presenting a case to the jury in a way that was easily understandable and interesting enough to hold jurors’ attention. My presentation was stilted and more than a bit boring. I was failing as a storyteller.
Before I go any further, know that storytelling is not a synonym for trial advocacy, opening statement, or closing argument. The ability to tell a story is one of many tools in the trial advocacy toolbox. When I was first starting out, I was much more of a lecturer than a storyteller. Lecturing to a jury might get a trial prosecutor where he needs to be more often than not, but when up against a skilled defense attorney and a challenging set of facts, lecturing is not enough. Jurors need to remember the facts and circumstances of the case in clear detail and understand what conclusion those facts and circumstances dictate.
The best way to achieve this goal is through storytelling.
Human beings are wired to listen to stories. The first stories were oral histories that taught us who we were and where we came from. Storytelling is a universal art shared by every human culture. Everyone understands—and loves—a good story.
Storytelling is much more than a simple chronological recitation of the facts. It requires a full-fledged narrative with identifiable characters, easy-to-follow plot, and a lesson for the listener. As trial attorneys, we are oral storytellers. The best oral storytelling is done with conviction and emotion. Great storytellers tell a story where the important characters are obvious and the story structure doesn’t leave the listener guessing or confused.1
I knew that I needed to improve in this regard. One weekend, I took a break from preparing for a misdemeanor assault family violence case and spent some time with my grandfather, who had an affection for professional wrestling that I was only remotely aware of. On this particular day, he was watching some sort of “greatest wrestling feuds” show. I sat watching it with him when the narrator began telling the story of the rise and fall of the Mega Powers, Macho Man Randy Savage and Hulk Hogan. The short version of their story is really one of a friendship falling apart. An important element was Macho Man Randy Savage’s belief that his girlfriend, Miss Elizabeth, was romantically involved with Hulk Hogan. The whole Macho Man vs. Hulk Hogan story was the central storyline for the spandex soap opera in 1989. As I watched the various clips of Macho Man from throughout the feud, I couldn’t help but see similarities between the jealousy and paranoia exhibited by both Macho Man and the defendant in my upcoming family violence case.
Macho Man presented himself as someone consumed by jealousy and paranoia. I observed these same characteristics in my defendant. The whole story structure was designed so that the wrestling fans of 1989 could easily see how unfounded and ridiculous Macho Man’s beliefs were. As I watched the little documentary play out, I realized I could use a similar story structure to show how ridiculous and inexcusable the defendant’s actions in my case were. By the end of the hour-long program, I had more than a few ideas on how to improve my trial plan.
My approach to that jury trial was more story-driven than it had ever been, which led to a much more energetic argument. I could tell that I had the jury’s attention and interest. There was still a lot of room for improvement, but the trial ended with a positive result for the victim and, for possibly the first time ever, genuine positive feedback from my elected.
As odd as it was, I wasn’t oblivious to Macho Man Randy Savage’s storytelling lessons. I was convinced that there was still more to learn from him and his ilk, and I decided to explore it further.
It’s not the bright spandex that makes a prosecutor
The thing that got me most about my boss’s critique was his comment that I was milquetoast. I cared deeply about each and every case that I took to trial! That I was perceived as timid or feeble in closing drove me absolutely insane. Improving on my delivery was one of the most noticeable—and, in hindsight, the easiest—changes I could make to my trial presentation. I may not be saying the right words but, by God, I was going to say them with conviction.
Anyone who has watched a professional wrestling show has undoubtedly noticed the wild presentation of each character. The performers march to the wrestling ring garbed in brightly colored gear with personalized theme music blaring over the speakers. This showmanship goes a long way toward establishing each performer’s character and telling the audience what to think of him.2 How the performer carries himself and how he speaks is equally important when the audience determines its opinion of him.
It’s not at all uncommon for participants in a wrestling match to give a monologue before or after the match. While the material they are given to work with is not always the most compelling, you’d be hard-pressed to deny their presentation skills. I’ve yet to see a professional wrestler who didn’t speak clearly and authoritatively. The performers have quite the emotional range and, depending on what the script calls for, they can appear everything from apologetic to apoplectic. I’ve seen wrestlers exhibit a level of righteous indignation to rival that of any prosecutor. They also do a remarkable job of adjusting the tone and tempo of their speech to emphasize an important point or otherwise suit the needs of the story.
When speaking to jurors during closing argument, we shouldn’t try to entertain them or use theatrics to distract them from the task at hand, but we can mimic the energetic and commanding delivery of professional wrestlers. The righteous “say your prayers and take your vitamins” approach of the heroes really lends itself to a prosecutor’s plea for law enforcement or demand for justice for a helpless victim.
That’s not to say that there aren’t lessons to learn from the villains, though. It’s the villains’ role to get the audience to dislike them. They are doing their job when they get the crowd to boo them. They present themselves as arrogant, untrustworthy, or egocentric—or sometimes as predators looking to exploit the weak. Other times, they are cowardly slime balls who have no qualms about lying, cheating, or stealing to reach their goals. A prosecutor would never want to be seen in the same light as a pro wrestling villain, but you can learn a lot from how they tell their stories, too.
Heroes and villains both do an excellent job controlling the tempo of their speech. Even today, eight years into this job, I struggle with tempo. I’ve always spoken very quickly and, when I was younger, I would frequently stumble over my words. If I tried too hard to slow my speech down, I ended up speaking with such a weird cadence that you might think I was doing a bad impersonation of William Shatner. I didn’t make any true, lasting improvement in this area until I began mimicking successful public speakers. Because I was in the midst of my study of professional wrestling promos, it made sense to give imitating them a shot. Success didn’t come right away, but after a little time, the deliberate tempo with which most professional wrestlers spoke began to be the default speed for my courtroom persona.
A time and place for everything
There is structure to everything we do as lawyers. Telling a story is no different. Every story has to have a setting, characters, a plot or conflict, and a theme. When I set out to become a better storyteller, I found the comparatively straightforward storylines of professional wrestling to be very instructive.
Setting. If you saw the word “setting” and thought, “Duh, my setting is the county I work for,” you are right for legal purposes but otherwise completely wrong. Choosing the setting for your story is incredibly important. You literally set the scene for a story by first describing the setting.
You might not guess it if you haven’t been exposed to it, but a good bit of storytelling in professional wrestling is done outside the ring. Characters interact in backstage areas like locker rooms and the offices of authority figures. There are even occasional fourth-wall-breaking events that occur at, say, a character’s home. The wrestling ring itself can even be transformed depending on the story the performers are trying to tell.
Setting is just as important to the stories that prosecutors tell jurors. Which is the better setting for a driving while intoxicated case: “the state highway between Henderson and Tatum” or “a dark, perilous stretch of road dotted with patches of ice and high-speed traffic traveling both directions”? Would you rather the setting of your assault strangulation case be “100 N. Main Street” or “the floor of a child’s bedroom as described by the 5-year-old who is peeking out from underneath the covers, hoping and praying that his father doesn’t hurt his mother”?
The setting of your story, to a degree, will be dictated by the underlying criminal offense. Don’t let yourself fall into the bad habit of treating setting like a simple geographical location. It is so much more than that. Think about the story you are trying to tell the jury and how the setting of that story impacts your message.
Characters. The characters in our story are just as important as the plot of the story itself. Book and film characters’ personalities are often ambiguous, with no clear protagonist. All of that is fine when you are telling a story for entertainment, but when you tell a story for comprehension purposes, characters must be simple and straightforward.
Professional wrestling’s sole purpose is undeniably entertainment. It is, however, entertainment designed for a wide audience. As such, the characters (and plots) tend to be simple, if not one-dimensional. This might render the pro-wrestling spectacle uninteresting to you, but that doesn’t mean the medium is without lessons for prosecutors.
Turns out that professional wrestling storylines are, at their heart, morality plays. Each storyline features a hero and a villain. The hero is almost always an exaggerated symbol of virtue. Spectators know who the hero is because the hero works hard, plays by the rules, and treats people with respect. The villain is often the complete opposite. He is obvious to wrestling fans because the villain isn’t afraid to cheat, abuses his power, and takes advantage of people.
As prosecutors, the stories we tell are also, at least to some degree, morality plays. For that reason, it’s important that our stories have easily identifiable heroes and villains. For me, the first step is identifying my heroes. There is no black-and-white rule for determining this. The hero in a case might be the victim, it might be law enforcement, or it could be a simple bystander. Because the world a prosecutor works is in nuanced and real, the heroes of our story might not have done more than simply follow the law. Don’t be afraid of making the law-abiding citizen or police officer the hero of your case. By simply following the law, that person has already done more than the defendant has.
At first glance, selecting the villain can seem pretty easy. A man who angrily throws his wife down a flight of stairs makes a pretty great villain, and getting a jury to recognize that guy as such is a straightforward task. It might be harder to get the jury to see a 17-year-old kid who got caught with an ounce of marijuana as evil or villainous. In such cases, don’t overplay your hand. Cast the act of violating the law as your villain, and in closing argument, use your plea for law enforcement to drive the point home.
Plot. Plot is a story’s action, what happens in the story. When a story begins, all of the characters are at Point A. When the story ends, all of the characters will be at Point B. The “story” is about the conflict or the obstacles the characters overcome between Points A and B.
Surprise! Pro wrestling stories are really good at keeping things simple. The plot of a wrestling storyline is going to be dramatically different from the plot of a criminal prosecution storyline, but when I looked at these stories for inspiration, I observed that the movement of a wrestling storyline from Point A to Point B never included more than two or three key moments. For instance:
Point A: The hero and the villain must compete for the opportunity to fight the champion.
Plot Point 1: During the contest, the villain cheats to win.
Plot Point 2: The hero demands a second, fair match between himself and the villain.
Plot Point 3: The hero prevails over the villain in the rematch, despite the villain’s cheating ways.
Point B: The hero gets to fight the champion.
When you sit down to organize your case into a story for the jury, keep your story similarly uncluttered. For example:
Point A: Our teenage heroine has suffered years of sexual abuse at the hands of her father, our villain.
Plot Point 1: The teenager and her young son spend the weekend with her mother, who is separated from her husband, the villain.
Plot Point 2: The villain calls law enforcement after the heroine refuses to return home.
Plot Point 3: The heroine reveals to her mother and law enforcement the years of sexual abuse.
Point B: DNA testing reveals that the villain fathered his own grandson with his daughter, the heroine.
I know that this story is a sad and disgusting one, but explaining this type of story to the jury is the unfortunate reality of our responsibilities as prosecutors. The story also goes to show that no matter how many facts you are dealing with and no matter how complex the offense, the crux of the story can often be boiled down to just a few key points. When telling the story, you certainly don’t have to—or want to—skimp on any important details, but when it comes down to brass tacks and you are forced to sell the story to the jury, you want to be able to emphasize the story’s basic components.
Theme. Every book we read or movie we watch has a moral or theme that offers a comment on or insight into the human experience. The morals of a pro-wrestling storyline are successful because they emphasize simple values that are already familiar to the audience. The audience already knows that cheating is bad. When faced with a story where the villain has cheated to win, the audience is already primed for the story’s happy ending where the cheating villain gets his just desserts.
There is no reason for the theme or moral of our story to be much different or more complex. Our juries know that murder, sexual assault, and home burglaries are bad. When we tell those stories and, through the facts in the case, show them who the villain is, they will be similarly primed and ready for the villain to pay for his crime. For less heinous offenses, the jury might need more reminding about the values of our case. Spend time considering the jury pool when deciding what values to emphasize for drug possession, low-level theft, and criminal trespassing in particular. While these offenses are no less illegal than more serious crimes, public sentiment about low-level crimes is changing and the way people view these crimes is quite varied. It’s important not to miss the mark and oversell the moral value of this type of a case. If you do, you run the risk of driving your jurors into the waiting arms of opposing counsel.
Catchphrase. “Do you smell what The Rock is cooking?” I’m not 100 percent sure myself, but the man now known as Dwayne Johnson made quite the name (and money) for himself by asking that question repeatedly throughout the late ’90s and early 2000s. Pro wrestlers love their catchphrases, and their fans love the catchphrases even more. They buy T-shirts, hats, and lunchboxes emblazoned with them. These phrases are memorable and, years after the performer has moved on to bigger, better, less painful pursuits, they might be the only thing fans remember about him.
Storytelling prosecutors need catchphrases. Now don’t get me wrong, I’m not encouraging anyone to don a pair of tacky sunglasses and proclaim to jurors that he is “the best there is, there best there was, the best there ever will be.”3 That could rub judges, opposing counsel, and coworkers the wrong way. But I am encouraging prosecutors to find a phrase that relates the moral or theme of their story. Once you find it, prosecutors should make that catchphrase important and central to the case.
Choose one that touches on whatever concept you are using to tell the story to the jury. I once tried an aggravated assault where a homeowner’s right to exclude or remove unwanted people from his home was central to my case theory. My catchphrase for that case was, “My house, my rules.” If you have a fact that stands out above the rest, design a catchphrase that emphasizes why that fact is important. I tried a possession of methamphetamine case where the meth was located in a plastic bag tucked under the defendant’s private parts. “Location, location, location” practically wrote itself.
These catchphrases will reinforce your message to the jury. During deliberations, when the jury is discussing evidence, a well-designed catchphrase will draw jurors to those facts that are most important to your case theory. If a disagreement between jurors arises during the middle of deliberations, a catchphrase may very well be the tool State-leaning jurors use to win over a fellow juror who isn’t quite convinced.
Don’t believe me? Ask yourself how many times you have heard, “If the glove doesn’t fit, you must acquit.”
Putting it all together. As prosecutors, the goal of our story is to guide a jury through the facts in a complete and understandable fashion. Simply explaining what happened is not enough, so our story structure should also lead the jury to reach the appropriate verdict based on a clear and accepted value. For example, consider the following way to tell the story of a police officer stopping an intoxicated driver to a jury:
“Officer Jane Noble [our heroine] is out patrolling the highway late at night. She is doing everything she can to make sure citizens make it home safely. The last thing she wants to do is call somebody’s parents in the middle of the night to tell them their child died at the hands of a drunk driver.
“Defendant McDrunk [our villain], on the other hand, spent the evening partying with friends. One drink turned into a second, then a third, and so on. At 11:30 p.m., he got behind the wheel of his 4,000-pound F-150, with his 9-year-old son in the back seat, and he began the drive home. He nearly clipped Officer Noble’s patrol vehicle when he sped past her at 85 miles an hour (in a 65-mile-an-hour zone). It wasn’t enough for McDrunk to simply fail his standard field sobriety tests—he had to fail them spectacularly.
“It took a while to locate the child’s mother, but after about three hours she arrived on the scene to pick up her son. The sobbing boy was released to her custody right around the time McDrunk refused to provide a sample of his blood. After our heroine secured a warrant, McDrunk’s blood was drawn, and the DPS lab confirmed his blood alcohol content to be .151. As he was booked into jail, he remarked on how much he loves his son and how he would do anything for him.”
I know what you are thinking: How is that possible? All the facts are there. The defendant’s guilt is as clear as crystal. If you were presenting these facts on a law school exam or talking shop with a group of prosecutors, you would be exactly right. However, we don’t argue our cases before juries of law students or prosecutors. Our juries are comprised of a diverse group, all with different life experiences. But whatever the jurors’ backgrounds are, I guarantee that they share an ability to listen to and understand a story. Storytelling is universal and, as my boss likes to say, trials often boil down to a battle of competing stories. The jury will usually be swayed by whatever side presents the facts in the most compelling story.
And that’s the bottom line—because Stone Cold said so
I realize that the storytelling lessons of professional wrestlers are not for everybody, but that doesn’t change the fact that storytelling ability is one attribute that sets a passable prosecutor apart from a good or great one. If you lack in the area of storytelling, seek out storytellers to whom you relate. Study those people. Take what you can from them and make it your own. Practice, practice, and practice some more until you find a storytelling voice that works for you. Don’t be afraid to explore a variety of storytelling media to find what’s best.4
At the end of the day, there is no gold champion’s belt awaiting prosecutors who master the art of storytelling. We are public servants. It is our job to come to the courthouse every day and seek justice for the citizens of the counties we serve. We owe it to those citizens to be the best prosecutors we can be. The best version of every prosecutor is one who can do more than read off a list of facts and summarize the law. The best version of every prosecutor is someone who can win the battle of competing stories at trial.
1 I realize that many television shows, movies, and novels featuring dramatic twists or non-traditional story structure have been incredibly successful. While the writers of Westworld have been good at getting millions of viewers, myself included, to tune in to episode after episode of non-linear insanity, that type of story structure is not an effective advocacy tool.
2 Need an example? Look up “Ric Flair entrance” on YouTube. Someday, I will walk to the podium for opening statements wrapped in an ornate bathrobe with “Also Sprach Zarathustra” blaring over the courtroom audio system. I encourage everyone reading this to write a letter in support of me to the State Bar when that day comes.
3 As made famous by my favorite Canadian, Bret “The Hit-Man” Hart. At first glance, you would be forgiven for not knowing what to make of Hart’s wraparound sunglasses and hot pink wrestling attire. Despite his appearance, every action he took and every word he spoke oozed authority and self-confidence.
4 Professional wrestling was hardly the only stop I made on the road to being a better storyteller. Jim Perdue’s Winning with Stories was legitimately a great help to me. I also found a series of TED Talks on the art of storytelling that were instructive. If you just want to listen to some good storytellers, I highly recommend two podcasts: The first is a modern-day take on Paul Harvey’s famous “The Rest of the Story” radio show. It’s produced by Mike Rowe, and it’s called “The Way I Heard It.” The other is “The Moth,” which is an hour-long podcast with each show built around a common theme featuring stories from three or four different storytellers. Unlike “The Way I Heard It,” all of the stories on “The Moth” are personal ones, which I found to be particularly helpful. I recommend listening to an episode once just for enjoyment and then a second time to analyze the story structure.