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Tell Me a Story: Communications Tools for Lawyers

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Tell Me a Story: Communications Tools for Lawyers

Attorney Aaron Solomon and MBA and chaplain Meredith Parfet discuss the critical role of storytelling in communications, whether as a persuasive tool for lawyers, or as a component of crisis management for their clients. This course covers the cultural and cognitive role that storytelling plays, as well as ways it has been incorporated into legal pleadings, its excision from complaints under the Federal Rules, and its slow return. It then addresses the centrality of storytelling for clients, including such issues as the importance of controlling a public narrative, communicating with friends and family, and the danger of trying to stay totally silent. It presents concrete tools for finding and telling a story, such as a message map, stakeholder analysis, and message funnel. Finally, the course includes a case study of a high profile employment discrimination case and the role effective storytelling played in the outcome.

Transcript

Hello. Welcome to our CLE presentation Tell Me a Story: Communications Tools for Lawyers. Hi, I am Meredith Parfet, the CEO of the Raven Yard Group. We're a crisis management firm and we work with leaders and teams and often their lawyers who are facing organizational and professional crisis. We define crisis as a regulatory enforcement action, workplace fatalities, industrial accidents, fraud, criminal misconduct scandal and white collar issues, partnership, dissolution, M&A turnarounds, things like that. And the reason we point that out is our view of crisis is that it's Capital C, it's the big things that mean something has changed radically within an organization. It's not a bad tweet. It's not a bad hair day. It's it's the big stuff that that teams and leaders really face. While our entire team has a very technical background finance ops, years of brand management litigation, what makes us really unique is our emphasis on supporting the well being of teams and leaders in crisis. So I'm a seasoned entrepreneur. I have a lot of experience in venture capital, private equity, hedge funds. I spent nearly two decades in asset management. I hold an MBA from the Kellogg School of Management as well as a BA from Northwestern. For better or worse, I have experienced crisis across every aspect of my life and I have used my learnings both personally and professionally to help leaders survive and even grow. So one of the things that makes me unique in the way that I approach crisis and that we as a firm approach it is. I also am trained as a humanist hospice chaplain, and one thing I know about crisis is that grief in our personal lives doesn't actually feel that different from grief in our professional lives. So what you'll see from us today is the ways that we incorporate and integrate the human aspects of crisis with the technical and with the kind of tools based practicality that we also bring. I'm joined by Aaron Solomon. Aaron, please introduce yourself. My name is Aaron Solomon. I am a lawyer. I have a JD from the University of Chicago. And about 15 years of legal practice with a focus on arbitration and appellate litigation. Our presentation today is going to focus on four parts. We're going to talk about the impact of storytelling. Why does storytelling work? We're going to talk about storytelling and its place in the law as kind of a formal matter. And then we're going to talk about tools for telling your client's story that are informed by the work we do in crisis communications. And finally, we're going to close with a case study. So why do stories matter? Stories are persuasive, and it's the job of a lawyer to persuade and stories organize information in a way that makes it easy to understand. And it's that's also the job of the lawyer is to explain. And finally, stories humanize who people are. And as a matter of sort of procedural justice and like personal experience, people want to have their stories told as part of a litigation process or as part of a legal process. So. The persuasion aspect of stories, right? Stories are some of the oldest and most natural form of communication that we have. People look at narrative as a sort of default way to understand information. And so you can look at the use of parables in the Bible. You can look at things like Aesop's Fables. And certainly this is something that has been recognized in philosophy, at least as far back as Plato, who talked a lot about the importance of stories and of the state actually choosing and censoring stories to make sure that the ideas that it wanted conveyed were conveyed to the next generation. Um. In a more modern context, right. Research shows us that in the health care context, for example, um, anecdotes are a lot more persuasive than data, uh, in terms of convincing people to make decisions. Um. And. Right. And this is there's actual science to back this up. Right. Um, lots of lots of experimentation has been done about measuring body responses and brain responses of people who are listening to stories. Um, and so you'll see things like if you tell someone a story while they're getting an MRI scan, you can see the emotional centers of their brain lighting up or you can you can measure their heart rate or their sweat responses picking up. And perhaps most interesting to me, right is this this notion that, um. You can actually measure an increase in oxytocin token production. When people listen to stories And this is this is the the the part of your body. Right. That creates empathy. This is the the the the physical process behind empathy. So stories are measurably create empathy for the thing being talked about. Um, and business is kind of long recognized the value of stories, right, for for businesses. It's called marketing. Um, right. This idea that you want to be part of a broader narrative, the story of a brand, the like, the ideas that and values that are conveyed by a brand. This is all deeply embedded in, in the way business works. Um, and perhaps as usual, the law is kind of late to the party in recognizing the importance of stories and the value of storytelling. This. This is worth highlighting in and, and putting an exclamation point next to because one of the things that we observe with our clients who are going through complex legal proceedings is that often the lawyers don't take the time to ask any questions about the brand. These are the brand of a company. It might sound kind of fluffy, or we think, Oh, it's their advertising, it's their marketing, it's their packaging. But in most cases, big brands spend millions, if not billions of dollars building that brand story. So if you think about the world's largest brands, Coke isn't just a product. It's not just a can that's red. It's an entire story that they tell about how they operate. And what lawyers often overlook is asking any questions. What matters to your brand? What is your brand? Do you have any brand documents that we should review as we try and tell your story? And it's this kind of critical mismatch where we often think that we need to tell a legal story that's just the facts. And instead of of using that lens, there's a way of saying, we all know that any legal story can be told in many different ways and that the brand should be a part of how that story gets told. Sorry. Exactly. That's exactly right. And I point out that individuals have brands, too, and it's it's the reputation. And so, you know, as as a politician famously asked after being acquitted, where do I go to get my reputation back? Right. And so personal reputation, personal brand is also a huge part of of storytelling in the litigation context. That's exactly, um. A good story, right? Is not just the facts, though. A good story has a sort of a Y element and an explanatory element to it. Um, and so I want to, I want to use as an example the movie A Few Good Men. Um, for those of you who have not seen it, very briefly, Tom Cruise is a defense attorney. He's defending a pair of Marines who have been accused of murder in a hazing incident gone wrong. Um, and so the story. Right. Can be looked at a couple of ways. This first one here, the facts of the case. Right. This is from the prosecutor's opening statement. Um, and he sort of lays out just the facts of what happened. Um, and it's very persuasive. Right? But then you think, well, why? Right. Why would the defendants have done this thing? And so the second statement here. Right, adds character motivation. It adds to the story a y element. And this is the defense statement, right? It's not just what happened, but what were people thinking when it happened? And then this last section, I think is the most interesting, right? This is this is the the the why that's beneath the surface. Right. And this is a sort of private conversation between two of the defense attorneys where they're saying, okay, you know, it's not just why did they do it, but what were they thinking? What was their motivation? What does this say about who they are? Um, this is the sort of conflict beneath the surface, um, that that really sort of gets into understanding, um, the meaning of something. And you can think about this in the context of something like, um, you know, a statute of limitations, right? Which can sound very cut and dried. But if you dig into like, the whys, why do we have a statute of limitations? What are the what are the implications of trying to, you know, defend against a cause of action 20 years later? The further you dig into sort of these stories, the more persuasive your legal points can be. Um, and speaking of is. Is this the point in the presentation where I tell you that you can't handle the truth? It is in fact that is that is exactly what you tell me. And then we play Six degrees of Kevin Bacon. Excellent. All right, keep going. Okay. Um, and this brings us naturally, right? To storytelling in the law. Right. Where are the stories in the law? Um, the natural place to look for the stories is the complaint. Right. Um, this is from the federal practice manual telling us, you know, the complaint is the public face of the litigation, right? It describes the case and it describes it not just to the court, Right. But to the public. To the media. Right. To opposing counsel. The complaint is all about story or should be. Right. Um, and has has these sort of three stories inherently in it. Right. There's the, there's the what happened story. There's the like the story of the law. Right. Um, what are, what is the what is the development of the law? And then there's sort of a procedural story, but stories are actually just returning to complaints and want to dig into kind of why that happened and what what that can tell us. Um. The idea of a complaint at common law is very, very old. And these are it started as a sort of oral discussion in front of the judge, but it evolved over centuries into this sort of increasingly detailed and formalized process. Um, and the idea was to narrow a dispute to a single issue to be resolved by the trier of fact. Um, and complaints actually became the central piece of litigation, sort of like discovery is for us now. And they became really highly formalized and there was a need to use language that was so formalized that it would kind of fail to even convey what the underlying events in the case were. Um, and so there's this case from 1317, right? Rattle Stone, the Thunder Stone, Um, and the pleading, right, is the defendant sold the plaintiff a barrel of wine. But before delivering the barrel, the defendant had quote, by force of arms with swords, bows and arrows, etcetera, drew off much of the wine and replaced it with salt water. Right into this party. Exactly that. That. The underlying facts. They're probably a shipping accident. Right. What probably what happened is the wine got contaminated with saltwater in a shipping accident. But if you're going to plead this kind of trespass, you have to plead that it's by force. Right. And so the rules kind of get in the way of telling what actually happened. Um, this second quote. Right? Could be a kind of awkwardly worded interrogatory answer written today, but it's actually from 1431. It's from a the oral sort of interrogatories given to Joan of Arc at her trial. Right. And so, again, this kind of formalism that kept us from telling stories and kept us from communicating clearly was really sort of deeply embedded in the law. The last one right, is from a Florida statute from 1972 and the case that involved this statute, papachristou city of Jacksonville. It's a pretty common law school case on void for vagueness. Right. But it's the same thing, right? It's this use of very formalized language that is kind of detached from its meaning. This is this is meant to be a vagrancy statute. Right. But it's it's just using such formalized language. That is, the Supreme Court pointed out it can't even convey to people what's being forbidden. So along come the federal rules. Right. And the the given all of this, the drafters of the federal rules kind of started from the point of view that the pleadings aren't actually that important. Right. And they wanted to kind of make a clean break from the past. And what they gave us was rule eight, which as as the Fifth Circuit described, quoting Ecclesiastes, you know, let thy speech be short. You know, um, the the complaint under the federal rules was initially just to provide notice of the claim asserted. Right. And the the storytelling aspect under this version was going to come from discovery. Right. And discovery was meant to keep formalism from kind of clouding the facts. Um. And that was that was sort of how complaints were done under Rule eight for a long time until 2007 when you had Quarmby and then Iqbal in 2009. Meredith You can go on to the next slide. Thanks. Um, that sort of reinsert the idea of storytelling into the complaint. And Quarmby in particular, right, Um, is telling us that. Under the Supreme Court's current reading of Rule eight, you can't have just unadorned accusations or labels and conclusions or a formulaic recitation of the elements of a cause of action. Right? You have to have something that gives you enough context in facts for the court to make a reasonable inference that that the defendant is liable. Right. And so. The seventh Circuit kind of interpreting all of this. Right. Is explicit. Right? That that what Twombly and Iqbal are asking for is a story. Right? A story that has kind of narrative coherence that that fits within our understanding of how the world works. Um, but one that is not, as is pointed out below by the 10th Circuit, a press release, right? There's, there's, there's this, this sort of balancing act in there between allegations that maintain a legal character and something that is purely a story. What's so interesting to me about, especially the the second case is it's not only an indictment of using plain speech and useful language and storytelling in legal proceedings, but it's also an indictment of the press release process, too, that often those are these kind of meaningless, frivolous, non kind of illustrative documents that we should be rethinking those too. And that for our practice, the question of managing a crisis is let's look at what story we're trying to tell and then let's tell that in the best way possible. That might be a press release, but in the way that they're typically done, those are often really, really ineffectual. So it's a it's a both and call to action to say think through your strategic story and then tell that across all of your communications, not just your legal communications. And I will say, Right, um, regardless of what you think of Twombly and Iqbal, the result is a complaint which is much more persuasive. And these are pair of slip and fall complaints. Um, the one on the left is, is drafted more sort of notice pleading. And the one on the right is a much more story based complaint. And you can judge for yourself which is more persuasive. Um. And you can also note, right, that the problem with the one on the right with the story based one is it kind of requires you to know your facts. Right. It's it's more work to write like that and it's more work to sort of advocate like that because you can't cut and paste. Um, you know, your elements into your complaint and move on. You actually need to know what happened before you can communicate it. And that might be why you don't see it as much. But if you do know that, if you do have that information, telling that story really makes something a lot more striking. No pun. No pun intended. Yes. Thank you. I want to touch on sort of two areas outside of the complaint where you see storytelling. Um, one sort of well-known example of this is a brief Alaska by now, Chief Justice Roberts. Um, and his client was, um, functionally, his client was a mine in Alaska, right? And so he's got this sort of. Digression in the beginning of the brief. Well, how did the Red Dog Mine get its name? And legal writing expert Brian Garner interviewed him at one point and sort of said, Well, why did you do this right? And Robert said, Well, you know, you waste a couple of sentences in the brief. You put that in there. It's kind of interesting, but everyone remembers it. It and they get invested and they want to see how the story ends up right. So what he's doing here is he's using this specificity to build empathy. Um, you know, you're, you feel a lot more empathy for the Red Dog mine, you know, discovered by a Bush pilot in the woods with his with his Irish setter. Then you do for a kind of anonymous hole in the ground. Um. This next one is an amicus brief by The Onion, a satirical newspaper filed in support of someone who was engaged in civil rights litigation for when he was arrested for creating a parody Facebook page. And what The Onion did here was write the entire brief, including like beginning with the interests of the amicus, like from word one as parody and a legal brief at the same time. And I don't know how many of us will get a chance to, like, file a masterwork like this, but it's truly extraordinary in its persuasiveness by being. Both a brief and an example of what it what it's talking about. But the process by which this was done was really interesting. Um. It was primarily written by The Onion, right? They sort of did the core of it and then handed it off to their lawyers to sort of beef up with case citations rather than the other way around, which is how these are almost always done with the lawyers writing the brief and then sort of saying, well, throw in a little flavor. Right? Give us give us a little facts. So it's a really ambitious attempt at imbibing character into and story into a brief. Now we want to shift perspectives and nudge our legal colleagues to think beyond their role. And many of you do and and expand your perspective from a legal standard or from your role as legal counsel to your role more broadly as advisors. Almost all of the lawyers that we talk to and work with relay stories of being asked to provide all sorts of guidance. And for some that's a comfortable role. And for others it's this kind of uncomfortable conflict or tension that they feel. So one of the things that that we do to orient people to crisis is to talk about the inner world and the outer world experience of it. And for most of us, our training involves training around the outer world. We are trained, in my case, in financial analysis, in looking at a technical response and thinking about the media for for you as as lawyers, you think about the legal strategy. You might think about how does this impact the operations of the of the company. What's the regulatory response that's required? And we focus our attention almost immediately on that outer world experience. The problem with that and one of the things that we regularly convey is that there is no solely outer world experience for humans. We all have a rich inner world, and I don't know about yours, but in mine it's often loud, it's often crowded, and it's sometimes quite confused. So when we when we work with humans in crisis, the acknowledgement of the inner world challenges of that experience is is vital to understanding how how to respond appropriately. Most crisis management fails to acknowledge the human aspects, the stigma of the experience, the demands of people's family, the sense of dysregulation, cortisol, flooding, lack of sleep, dysregulated behaviors that lead to, you know, drinking too much or making bad decisions or shopping online, whatever it is that that people do to cope with crisis. All of that is going on in this mostly invisible inner world at the same time that all these outer worlds are being demanded. Outer world demands are occurring. So. So what does that mean? There's a study and I think it's from McKinsey where they looked at the top leadership pressures and the top leadership pressures were not what anyone expected. It was not the, you know, how do I do the PNL or even how do I manage my employees? How do I create a product? How do I innovate? It was really none of those things. It was emotional demands, the relentlessness of crisis. It is long lasting, all encompassing. And as we like to say, there's no such thing as work life balance. So when you're in a crisis, it is this relentless 24/7 kind of activity, which means there's only life, there's only living through this and trying to manage it. Lack of external support. Vilification is one of the things we hear most from our clients as a pressure feeling maligned in the press, feeling misunderstood, wanting to tell a good story about their organization when only bad stories are being told. Those are the inner world pressures that people are being asked to to to carry. The challenge with that is when we overlook those types of of inner world pressures and then we ask someone to give no comment. We ask someone or demand or state to our clients, You're not allowed to say anything to anyone. Well, that may be an incredibly effective legal strategy. It's almost impossible in every instance of clients that we work with who are told make no comment to anyone. They say something to someone. And so we think that advice needs to be rethought. Not that it's bad in every circumstance, but often it's outdated, it's impractical. It overlooks these inner world pressures that people are human, humans are social creatures, and they are wired to connect and they are wired to process things with others. So when we ask them for silence, when we ask them to make no comment, we're asking them to do something that they largely cannot do. So what do we. I would just jump in there, Meredith, to add that I think that that a lot of that is is fundamentally lazy lawyering, right? It's it's really easy to say, just don't say anything to anyone. You're protected. Your client is protected. And if you if you don't think about the need to communicate a story for for personal for brand, for business, then it seems like it's okay. What's hard lawyering is to really dig into the facts of each individual and their circumstances and their case and think what is okay and what is not okay. Yeah, that's exactly right. And it's also to reframe what it means to make a comment. This kind of idea, that comment is only a public response to a leading newspaper is is not how people comment very often anymore. We comment on social media. We comment in in forums online in lots of different ways, but we also comment to our families. We come into our community, we comment to our colleagues. And so thinking through what does no comment mean and who are we asking you not to comment to is part of the equation. So what do we mean when we say that it's a it's a spectrum from say nothing to anyone? To tell it on Oprah and that, yes, we can understand where there can be potential harm both to a brand and to a case by going extremely public with your comments. But giving people somewhere on that spectrum, things that they can say or they can't say is a more humane way of responding. Um, so we've already covered this. No comment. Rarely is what happens. And in many cases that just that basic language of no comment or I'm not prepared to talk about this, I'm not allowed to say it. There's a pending legal case which prohibits me from saying anything, any of the ways that that's phrased at this point, even in a kind of transparent, I'd love to tell you, but I can't kind of way it carries risks with it as well, because in the absence of information, people fill in the gaps. In the absence of saying something, it allows everyone around the person or competitors or other people on the other side of the lawsuit or community activist groups. Any number of people in a very in in varied crisis situations, it allows them to fill the narrative in. So when we create a no comment vacuum, all we're asking is for other people to write the headline for us. I'd also want to point out that no comment can be escalatory as well, that it carries itself, carries risks. And so at this point, there's a lot of research that shows that one of the major drivers for medical malpractice litigation is people seeking information, people wanting to know what happened. And they see litigation as the only way to find out what the story is. Um, and so because they're being met, they're not hearing a story right from their doctors, from, from the hospitals, what have you. They're going out and they're trying to seek that information. Um, and so the danger of no comment is that it can itself drive litigation in an effort to uncover the story that you're not telling. And this isn't to say that in every case people should comment wildly. And it's not to say that there isn't this intelligent tension between what to say and what not to say, but we'll often have clients who are being threatened with litigation and who want to say something about the experience that's very human. They want to apologize. They want to show empathy. And in many cases, we'll hear their lawyers say, well, you can't apologize. You can't you can't tell people that you think this is a horrific experience or a tragic experience or you can't admit to those things. And I think there's a very wide chasm between admission of of wrongdoing and expressing the gravity of a situation. And in most cases where we see people proactively express gravity, express empathy, express apology, express accountability, that often that is the first step of messaging is really effective for staving off lawsuits, even though it may create some future dialogue where it's used against someone when they say, Wow, this was a horrific accident or wow, we feel deeply sorry that this harm has occurred. Most of the time, empathic language is not used against people. So so it's pretty disarming when we apologize. This was a an instance with. Well, Aaron, you do this one. Can we take can we start this slide over? Because this is Aaron, I don't know this one as well. Sure. So, um, an effective apology can be really disarming in a way that a kind of legalistic apology is not. Um, and again. Right. Part of what makes an effective apology is, is having a story is having sort of honest communication. So the example on the left is a tweet from Dove, right. Where they're apologizing for a Facebook image. Right. Um, and. Right. There's there's no actual apology in here, Right? It's hard to tell what they're even saying. But once you kind of parse through it, they're basically saying, we're sorry you were offended. Um, it's just not doing much. The one on the right is KFC, um, apologizing for a situation where some of their restaurants ran out of chicken. Um, and they're really blunt. Right. Um, here's what happened. Huge apologies. Um, thank you for the people who worked really hard. We're going to try to be better. Right. You know what they're talking about. They're really clear on what they're saying. It's an effective apology and it's disarming. It's hard to be mad at KFC after you've read that. That's true. So we've talked about different dimensions of of creating that tension or addressing that that tension between saying nothing, not incriminating oneself further and being transparent and empathic, using apology effectively. One of the questions that gets back to that brand discussion earlier in the presentation is talking about people's personal reputation. That's an inner world question and it's an inner world weight and it is deeply important to people and it often gets overlooked in legal proceedings. We watched a case where the legal outcome was very, very positive for a client. They had had kind of the outcome that they would have hoped for, but because there were negative both press pieces on it and also kind of reputational damage in in the person's community, when the lawyer would say things like, gosh, this turned out great, the the person on the other side said, no, it didn't. My reputation has been damaged. We always say there's no statute of limitations on a Google search. And that becomes incredibly true when people are thinking about their reputation and about the way that our reputations show up in very permanent ways online and that the harm to people's reputation is deeply personal and deeply long lasting, which is often a case for allowing them to say something, allowing them to either rehabilitate themselves or tell their side of the story in an artful way. Um, I would also I represented at one point a client who litigated a case all the way through judgment. They had they had a collectible judgment for everything they were asking for and then turned around and settled it for pennies on the dollar. Um, and they did that because they didn't want to have the reputation in their kind of small professional community of being the kind of people who would push someone else that hard. Um, but they hadn't really thought about that until they were holding the judgment in their hand. So you can't always count even on your clients to know, right, what the, the reputational pieces are going to be. You have to help them sort of think through that and help them understand those pieces as they're going through the process. So that's a perfect segue. When we think about process, what are the kind of tools and ways that we work with our clients to implement process as a part of the communications strategy. So one of the things is if we don't want to live in just a no comment bubble, we outline proactively what are risky, prohibited communications. What are the things you can never say to anyone about anything at any time? Don't share your legal strategy. Don't defame the other party. Don't use inflammatory language. Poor me statements, even if they're guised as righteousness or outrage are often really ineffectual. Social media is just a morass and, you know, not putting things up that then can be tweeted broadly or on Instagram or whatever venue people want to use. Obviously, those are kind of logical, prohibited conversations. However, oftentimes those are not the things that the the legal team is laying out for for their clients or not saying, um, think broadly about who's using social media around you and how that's going to to unfold. So there's that. What are reasonable conversations. Most people need something to tell their family and their closest friends. They may not be able to tell them everything, but giving them language that says things like, I can't tell you all of the details, but I want you to know that this is really hard and we're working our way through it. That's not no comment, but there's certainly not a deep revelations in a statement like that many times. Again, because people are dysregulated in the crisis process, they need that simple of communications. Here's what you can say to your family. You can say, Hey, I know this is really hard. You can't really talk about this broadly either, but I'm open if you have questions for me and I will try and answer them. These are the facts and we're working our way through them. Simple, empathic talking points to the people that matter most. One of the things that we often get questions about is what happens if someone stops me and asks me about it? The being put on the spot in what we call grocery store conversations. Oh, I bumped into the the person at my country club. I bumped into them at the grocery store. I saw them at my children's school. Whatever those kind of informal settings are that people get put on the spot, they need a way to answer. Because what we don't want them to do is extemporaneously respond and then thoughtlessly because it hasn't been a reasonable conversation that's outlined for them, not know what to say and say the wrong thing. And then finally, we have controlled conversations. These make sense depositions, media inquiries. How do we communicate with our stakeholders, the employees, regulators, things like that. Thinking through from controlled conversations what should be put in writing versus what can be said. Obviously there's a broad spectrum there in terms of discovery, but also in terms of the impact and the broad kind of repurposing of what someone has said verbally versus what they've put into an email versus what they've tweeted out to the world. So breaking this down for people is really important. In many cases, clients have not gone through experiences like this before and just simply laying out strategies for them. It makes a world of difference. This seems like an obvious idea with a stakeholder analysis. Who are they? What are we supposed to be saying to them? Who is who's in the room and who are we trying to talk to? But what we see is that because people assume that communications in a crisis is PR and they assume that PR is essentially media, they overlook the fact that most legal cases do not have a PR component. Most crises do not have a public kind of media related PR component, but most. Every crisis has a communications component and who we communicate to and what we say it matters. And so it's not just what happens if The New York Times calls. It's again, what happens in a grocery store conversation. What about my business forum? What about my community? What about my colleagues, my shareholders, my suppliers? All of those things are conversations as a part of a stakeholder analysis. One of the the important things to note is overlooked communications. People want to tell their family. Their family wants to tell other family. They want to tell their friends. So assuming that the only person you're counseling is your client is really narrow because they've then gone and called their mother. And their mother lives in a community where she has friends and neighbors and people that want to ask her about what's going on. Overlook Communications isn't simply giving talking points to a person about people you might not expect as stakeholders. In many cases, it's giving them training on what to explain to their family that they can or cannot say what to explain to their friends, that they can or cannot say their colleagues. All of those people need communications, training or guidance in this process because it's often not the person at the center of the case who says something wrong. It's usually someone on the periphery. So draft a couple talking points. Hey, I know you probably want to tell your mom who lives in a retirement community and has 47 people on her pickleball team, you might tell her that this is what she can say or not say that guidance is critical because what can go wrong? Pretty much everything that could go wrong went wrong in this case. Gulliver v Snake. Um, so this is a case in which two parents sued, uh, school district regarding something that happened vis a vis their daughter. Um, they settled the case. Um, the case had a confidentiality. The settlement had a confidentiality provision. Um, the confidentiality provision didn't have a carve out for telling the daughter. Um, and so there were a couple of breakdowns just right there. Right. It never occurred to the lawyer that that would be something that would be necessary. And it occurred to the parents in the parking lot after they'd signed the agreement and they then didn't go back to their lawyer to try to fix the problem. What they did was freelance. Um, and so they told their daughter, but they didn't give her any guidelines, right? So what the daughter did was put the following on Facebook, um, and it blew up the settlement. Right. They forfeited the entire settlement as a result. Um. Okay. Left on their own right. People try to freelance and it never works. And it often shows up on social media. So we've given you the idea of looking for the kind of communication spectrum avoiding just hear no comment. We've talked about the use of apology. We've talked about overlooked communications and thinking broadly about stakeholders. We use a simple messaging framework for crisis. This is not a messaging framework for everything, but in crisis, there's typically three things that need to be said. Acknowledge, pivot and shift to the future is the way that we simplify it. But you could also call it apology process, and then you get to talk about the future. We had a case of an organization that did really impactful work in the nonprofit space and they had a catastrophic event occur and they felt awful. It was an absolutely devastating experience for people who had spent their entire career trying to do good. And every conversation they wanted to have was, why can't we talk about the good work we do? And what we had to keep reminding them was, whether you like it or not, there's a need to acknowledge that something terrible had occurred and to be accountable to it. In some cases, that's an explicit apology as a form of accountability, and in other cases it is describing the repair actions, the atonement actions, the remediation actions that are going to take place. So after the point of acknowledging, hey, we messed up, a terrible thing happened is the second piece, which it could be called Pivot, but I think it's better called process. People want to know what you're going to do. And in this case, specificity is the heart of credibility. What steps, what actions, what what plan is in place? Sometimes it allows you to avoid giving details of of what happened in the past when you can really focus on the steps you're going to take to fix it. This works even when there's not a lot of information. So saying an absolutely awful thing has occurred. We don't have all of the facts, but we're going to do these five things to uncover the facts. We're going to meet with experts. We are going to map a timeline. We are going to conduct a thorough external evaluation by auditors. You name it. We're going to take these steps. And once those steps have been completed, then we're going to report back to you and we're going to report back in these ways. People want specifics and they want process. So you have to own it. You have to describe the process, and then you can shift to what's going to happen in the future. Another tool we use is called a message map. This is a brand management tool. It came out of marketing and it's basically for the biggest brands. They often will write a framework that says what is your top line kind of core message? So that might be a company tagline in a brand experience it a brand example company tagline. Then from that, how do we visualize all of the sub messages and ways that we are going to deploy this message to various stakeholders? It works beautifully in crisis because it's simple. You need everyone speaking on the same topic in the same way, and it is a guide that if you get stuck, you go back to the message map. If you can't remember all the sub messages, then you at least have your core message and you are able to say that an anchor around that. It's an orienting document that we found completely invaluable for working with clients. So I would point. Out that. It's also incredibly useful for organizing illegal strategy and to conceptualize it, all you have to do is replace the word message with themes, right? It's a way to organize the themes of your briefing, the themes of your advocacy. It works just as well for legal storytelling as it does for external facing stories. That's right. That's true. So it's this core message. It's the three pillars that we talked about as a part of acknowledgment process and then future looking. And then it allows us to say, who are we talking to? Who are our stakeholders and what do we think the future objections could be? We use the message funnel then to basically say any question you pour into the message map should be filtered through the core message, the pillars, the supporting data and spit out at the end as a message. It just promotes consistency and it's a really good way to practice. Even deposition prep or any other kind of prep that you're doing with a witness allowing them to use a message like this and put it in the funnel is a is an incredibly effective tool. Um. So in conclusion to this section, you need consistency and that consistency should be formulaic. It needs to be thinking about a brand, it needs to be holistic with the stakeholders and it applies across every form of communication. Legal responses are not different than public responses to the press, than letters to employees, than social media. They are all part of one broad communication strategy and should be integrated appropriately. So we're going to finish today with the remaining minutes that we have and talk about a case study where we can apply some of these things. So this is a case that really draws together the two main threads of the presentation. Um, it draws together the sort of public storytelling aspects and the storytelling specifically in legal writing, um, as part of a sort of comprehensive legal strategy to achieve the results the client wanted. And the case is the US Women's National Team versus the United States Soccer Federation. Um, in 2019, the women's national team sued the US Soccer Federation, their governing body, um, alleging among other things, a violation of the Equal Pay Act. There were some working conditions, allegations, but they're kind of minor, all things considered. Um, and they had a really clear message, right? The plaintiffs and you can see it here, this is paragraph one of their complaint. The theme is we're world class team and we deserve to be treated like it, right? It shows up right away. Um, and that's, that's not a theme that's irrelevant to their equal pay claims, but it's definitely a piece of storytelling. Um, it is, it is a framework. It's a narrative that they're going to build on. So. They're also right telling this story in other places. They're they're emphasizing this story publicly. And so you see four months after the complaint is filed, Right. They win the World Cup. And what the what the stands are chanting when they win the World Cup is equal pay. Right. Um, there's a Nike commercial that sort of, um, pays tribute to them. Um, that that's all about sort of equality. So this, this message really permeates all their messaging in court and out of it. Um, and then they sort of carry it on, right? So here is, um, the women's national team, second paragraph of their motion for summary judgment. Right here They are its best athletes in the world, right? We're a great team. We deserve to be treated like it, you know, And we're not. It keeps showing up. Um. Usa Soccer sort of sees what's going on but doesn't have a story to tell in response. So if you go to the next slide, Meredith. Um, this is how USA Soccer starts its motion for summary judgment. Um, right. We're aware of this public narrative. We hear the story. Right. Um, but but the facts tell a different story. Um, but we're not going to tell you what it is, right? Whatever their story is, is kind of hidden in their brief. Um, it's not sort of brought out and it's not upfront. Um. And then. Right. That that lack of vision regarding a story sort of leads them into a real mess. And that mess is, um. They're arguing that the women's players are paid less because their job requires less skill. Um. And. Again, regardless of its merit as a legal argument, it is strategically for the ultimate goals of the litigation. A disaster. Um, first in the litigation. Right. If you go to the next slide, Meredith, the women's national team lawyers don't miss a beat, right, in picking up on this and using it right. So here is their reply. Um, and they're saying, look, this is, this itself is evident. This argument itself is evidence of, of discriminatory animus on the part of USA Soccer. Um. And then it has public implications, too. It has strategic implications to the sponsors of USA Soccer. And Meredith, you can go to the next slide. Are outraged at this. Um, and they're so outraged that the head of USA soccer ends up having to resign. Right. And he he writes this letter saying, you know, if I had seen this before it was filed, I would never have allowed such an argument to be made. Um. And, you. Know, this is this is it's losing sight of the narrative and it's losing sight of the goals. Right. Which is not necessarily to win the case, but to achieve a result. Um. So. Usa, the women's national team. Right. Lost the battle. Um, they actually they the USA soccer prevailed on their cross motion for summary judgment with respect to the equal pay claims. Right. So case was over, you know, subject to appeals. But like, um, you know, USA Soccer had won, but the women's national team. Right. Won the war because the the fallout from the the storytelling or the lack of storytelling by USA Soccer was so bad that the USA, the new USA soccer head, was a former women's national team player and a huge proponent of equal pay. And they ended up signing this new contract and it was like a celebrity event. Um, the Secretary of Labor was there. There were a couple of senators there. The players unions from representatives from like the NFL and Major League Baseball were there. That's not normally how you settle a piece of litigation, but because there was this story told that really grabbed people's attention, people wanted to be part of it. So what are all of the takeaways from what we've been talking about? Stories are a tool to organize information. Um, and we use in our own mind ideas like tropes or stock stories or stock characters as a way to slot new information into our, our schema, our kind of understanding of the world. It helps us make sense of new input. Um, and stories are persuasive. They're persuasive because they connect to our connect. What you're hearing to our sense of how the world already is. Um, and the evidence for that is both in their use over an extended period of time, but also in the, in the science of biology and in brain science. Um, and stories have a sort of complicated relationship with the law, right? Um. There's always been this goal, I think, of, of having a complaint and briefing and discovery process that uncovers and conveys a story. Um, but it is, it is frequently foundered in, in formalism whether that is the, the sort of excessive and flowery language that that concealed the story of the sort of pre-code and federal rules pleadings or whether it's this kind of like strict adherence to notice pleading that followed um followed the adoption of the federal rules. Um I think that what we're now coming back to is kind of a balance and an increased emphasis on stories and themes in pleadings. Um, and, and telling those stories is important and it's important not just to effective legal writing or effective legal advocacy advocacy. It's effective to clients or rather, it's important to clients for their entire dispute, their entire crisis, their entire issue. Right. They want their stories told and communicated in the courtroom, but also out of it. Um, you know, whether that is to, um, their their family and friends, whether that is to their customers. They want to be heard and they want think what they are coming to lawyers for in part right. Is help crafting a narrative that allows them to be heard. And. If lawyers can adopt and start to use some of the messaging tools that exist, those are tools that will lead them to a much more effective style of advocacy. Using a message map, using a stakeholder analysis, sort of generally developing a a, a set of themes, a set of stories that are, um, meet their clients needs that are, that are don't take on legal risk that is disproportionate to what the client is willing to accept. Um, but that will allow for a story to be told. What you're going to get is much more effective advocacy both in court and for your clients generally. We have a couple minutes before we have to wrap up. And I was thinking through a question that we regularly get, particularly around storytelling and message mapping. And the question often asked is, how do we craft a story for people who don't have a sympathetic story? Obviously, it's a lot easier to tell the women's soccer story because it's compelling. It's feel good. There's a huge stakeholder base of, you know, little girls around the country running around in soccer cleats who who resonate with that story. How do we tell the story for clients where it's not sympathetic and where it's not compelling in the same way? And I think there's there's kind of two ways to think about that. One is we often will work with clients on what would be perceived as the wrong side of the story. And what tends to be compelling is not how sympathetic were their actions or how sympathetic are they as humans, but how clear and consistent are they in their ability to use redemptive language, to use apology, to use empathy to understand their actions and move forward? That doesn't sometimes change the legal outcome. We've had clients who have gone to prison, but we've often talked to them about what is it that you want to convey as a part of this experience? What do you want people to know about what you've taken away, about the steps you've taken to remediate what happened, to grow, things like that? In those instances? I think the story is is possible that they may not be sympathetic. The story may not be sympathetic, but they can certainly talk in a compelling way about what has changed. That's exactly. That's exactly right, Meredith. In. Just one second. And so in the subset of clients where there is not a sympathetic story and they are not a sympathetic kind of character and you want to tell a story about redemption that they cannot live. That is one of the few instances where we would say advising to be quiet is your best plan of attack. And so I end with that. And Aaron, I want you to jump in if you have anything else to add that we get the nuance that this is not just about telling feel good stories about everyone, because in some cases, in many cases, that's not possible. But it's more possible for more people than I think the law typically gives room for. And that's what we're pushing for with with this kind of thinking Aaron. Sorry. I think that's exactly right, Meredith. And I was just going to draw this back to our discussion at the beginning about A Few Good Men and the importance that character plays in a story and that the sort of like why questions and motivation questions play in a story. There are very few people who are just evil, right? Who who do bad things because they're bad and because they want to do bad things and feel no remorse for them. Generally, people or organizations that have done bad things that are in unsympathetic situations have gotten there through a series of decisions. And they may have been poor decisions, they may have been mistaken decisions, they may have been decisions taken out of greed or laziness or what have you. Um, but they are all sort of pieces of a story of how did I get here? And, and where am I going? And the more you explore those issues, the better equipped you are to tell a story that is more nuanced than the facts. That is the perfect place to conclude. So we thank you for listening. We welcome any feedback. You can check us out at our website ravenyard.com. But otherwise we'd love to hear your thoughts on this and how you're applying it in the law. Thanks so much.

Presenter(s)

ALSJ
Aaron L Solomon, JD
Principal
Ravenyard Group
MP
Meredith Parfet
Founder and Managing Principal
Ravenyard Group

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