Sharing Stories: Narrative Lawyering in Bench Trials

Abstract

Narrative lawyering theorists have demonstrated the ways in which the dynamics of stories affect the way lawyers deliver and jurors receive messages within trial. However, relatively little attention has been paid to the distinctive ways in which stories are developed in bench trials. Examining three roughly contemporaneous bench trials, this Article illuminates how this trial format requires lawyers to be both performers and audience, alternating roles frequently, sometimes within the span of a breath or a gesture. The availability of feedback to the lawyer and the possibility of direct intervention by the fact-finder produce a stark contrast to what lawyers experience in jury trials. Moreover, due to their experience and training, judges are prone to interpret lawyers’ choices in light of patterns of which jurors would be unaware. In sum, bench trial narratives emerge from a process of joint creative control that requires lawyers to make adjustments at every stage of the trial. This article both illustrates how complex these interactive bench trial narratives can be and provides guidance for developing stories especially well-suited to this particular and, of course, quite common litigation setting.

Keywords: narrative, lawyering, bench trial, litigation