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| Jordan McKie |
Every lawyer has been there. We have laid out the facts. We have cited the law. We have prepared what we believe is a clear and persuasive argument. And yet the court saw something else — something that seems, at first glance, unrecognizable.
What went wrong?
The answer, more often than not, is narrative. Lawyers must remember that we do not simply present facts; we frame them. Facts on their own are ambiguous, unstable. It’s the structure around them that gives them meaning. Without a coherent narrative, the facts don’t lead the court where you want it to go.
The ambiguity of perception
“Kaninchen und Ente” (“Rabbit and Duck”) from the 23 October 1892 issue of Fliegende Blätter
This classic optical illusion demonstrates an important truth: perception isn’t passive. Two people can look at the same image and see entirely different things. In fact, the same person can flip between interpretations but not hold both simultaneously.
This psychological limitation is well-documented. Humans are wired to resolve ambiguity by picking a dominant interpretation. The visual metaphor holds in litigation. Judges hear the same evidence from both sides — but ultimately, they must choose one version of events.
Judges are not immune
It’s tempting to think that judges, by virtue of training and experience, rise above these cognitive constraints. They don’t. Judges are human. Their role obliges them to reach conclusions. That means resolving conflicts, choosing which evidence is credible and deciding which story best accounts for what happened.
Lawyers must remember this: a judge cannot hedge. At the end of the day, a finding of fact is a story the judge believes over another. Our job is to make that choice easier by offering a narrative that is plausible, grounded in evidence and psychologically coherent.
Narratives are sticky
Psychologist Daniel Kahneman explained this well. In his work on cognitive biases, he noted that people don’t remember data; they remember stories. Events that are part of a larger, logical sequence are easier to recall, easier to believe and harder to dislodge.
It is therefore not always the quantity of evidence that wins the day, but its arrangement. A coherent story gives facts context. It shows motivation. It anticipates doubt. If you want your facts to land with force, you must deliver them as part of a compelling narrative.
Practical techniques for narrative advocacy
None of this is to say that courtroom advocacy becomes fiction. We remain bound to the evidence. But how we select, emphasize and arrange that evidence matters immensely. Here are a few techniques lawyers should consider:
1. Know the core conflict
A case without a clear theory is a house without a foundation. Before anything else, lawyers must be able to articulate the essential conflict. Why does your client’s position make sense — not just legally, but intuitively? What principle is at stake? What is the “wrong” that requires the court’s intervention?
If we can’t answer those questions in one or two sentences, our theory isn’t ready.
2. Structure with intent
Yes, chronology is important, but don’t confuse a timeline with a narrative arc. Not every event deserves equal weight. Sequence the facts to build tension, highlight turning points and draw out motives. Give the court a reason to care about what happened and why it matters.
3. Anticipate the alternative
There is always another story. If you ignore it, the court won’t. A good narrative acknowledges and neutralizes the opposing interpretation early. Identify its weak points. Flag its inconsistencies. Help the judge feel justified in rejecting it.
4. Use language with purpose
The words we choose shape perception. An active voice implies agency. Attributing an action to the person or entity responsible for it conveys accountability. For example, “She ignored the warning” is more persuasive than “The warning was not heeded.” Lawyers must be mindful of how word choice subtly advances (or undermines) the story being told.
5. Anchor the law in the story
Don’t separate law from fact. Anchor legal principles in the human context of the case. When a judge sees how the law applies naturally to your version of events, the analysis becomes less abstract — and more persuasive.
A case without a clear theory is a house without a foundation. Before anything else, lawyers must be able to articulate the essential conflict. Why does your client’s position make sense — not just legally, but intuitively? What principle is at stake? What is the “wrong” that requires the court’s intervention?
If we can’t answer those questions in one or two sentences, our theory isn’t ready.
2. Structure with intent
Yes, chronology is important, but don’t confuse a timeline with a narrative arc. Not every event deserves equal weight. Sequence the facts to build tension, highlight turning points and draw out motives. Give the court a reason to care about what happened and why it matters.
3. Anticipate the alternative
There is always another story. If you ignore it, the court won’t. A good narrative acknowledges and neutralizes the opposing interpretation early. Identify its weak points. Flag its inconsistencies. Help the judge feel justified in rejecting it.
4. Use language with purpose
The words we choose shape perception. An active voice implies agency. Attributing an action to the person or entity responsible for it conveys accountability. For example, “She ignored the warning” is more persuasive than “The warning was not heeded.” Lawyers must be mindful of how word choice subtly advances (or undermines) the story being told.
5. Anchor the law in the story
Don’t separate law from fact. Anchor legal principles in the human context of the case. When a judge sees how the law applies naturally to your version of events, the analysis becomes less abstract — and more persuasive.
The advocate as storyteller
At the end of it all, counsel must never lose sight of this: we are not only technicians of the law, we are also narrators. We help courts make sense of complexity. We organize competing versions of truth. And when we do our jobs well, the court sees the rabbit — not the duck (or vice versa!)
There’s no magic to this. Storytelling isn’t only for artists, but it requires disciplined thinking, strategic structuring and a refusal to treat facts as self-explanatory. Every lawyer who prepares a motion, a cross-examination or a closing argument should ask themselves:
“What story am I telling?”
Jordan McKie has a litigation and appellate advocacy practice that focuses on family and estate law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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