Legal Strategy, Storytelling and Complex Litigation

Abstract

Trial law is important. Nearly a century ago, in Chambers v. Baltimore & Ohio Railroad Company, the U.S. Supreme Court said, “The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship.”

Edward Bennett Williams called trial law “the most creative art extant.” This is particularly true of complex litigation generally as well as toxic tort trials, which involve non-traditional injuries, complex questions of science and, frequently, the aggregation of numerous parties. Numerous articles have been written on specific aspects of complex and toxic tort litigation, and there are even some particularly good treatises now that deal comprehensively with the subject. This Article has a different focus which is to identify the paradigms within which complex litigation operates, and to discuss some of the principles which govern success in those paradigms. Other articles have attempted to explain how the paradigm of complex litigation differs from the paradigm of “bi-polar” litigation, or how these distinctions fail to fully grasp the nature of changes occurring in our civil justice system. What these complex litigation debates ignore is the changing nature of the role being played by a combination of Strategic Thinking and Storytelling in resolving these cases. The successful lawyer understands these paradigms and makes habits of the principles that govern success within them. Specifically, she identifies her and her client’s goals at the outset of a case, she undertakes extensive preparation for all aspects of her case, and she thinks strategically about the decisions she needs to make. The successful lawyer also knows that ultimately what she is doing is telling a story. Understanding this storytelling paradigm is fundamental to her success, and she uses this knowledge throughout the litigation process. It affects case selection, it shapes her complaint, it emerges not only as the narrative in her opening and closing statements but also as a persistent theme that reinforces nearly every argument and brief in her case.