Telling the Story: Integrating Witnesses, Experts and Documents into a Cohesive Narrative in Arbitration - Dispute Resolution Journal - Vol. 69, No. 4

Author(s):

Evan Slavitt

Page Count:

10 pages

Media Description:

1 PDF Download

Published:

December, 2014

Practice Areas:

Evidence,

Experts,

Hearing

PDF677.37 KB

$40.00

Description:

Originally from Dispute Resolution Journal

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INTRODUCTION

At the heart of every dispute are at least two competing narratives.

By the end of the hearing, the factfinder—whether jury, judge, or

arbitrator—must decide which is more convincing. Many counsel,

however, seem to think that just because they are presenting a case to

an arbitration panel rather than a jury, they can dispense with the task

of shaping the case into a coherent story. As a result, the arbitrators

are left with lengthy testimony and notebooks full of exhibits that

have to be pieced together. Instead of evaluating the conflicting

stories, the arbitrators become the storytellers to the detriment of the

process and the parties.

This problem is particularly acute in business cases for which

credibility is at issue. Each side presents well-spoken witnesses who

are prepared, coherent, and reasonably convincing on their own.

Nonetheless, the witnesses profoundly disagree on critical events—

conversations, meetings, etc.—in a way that cannot be reconciled as

mere defects in recollection or narration. The panel must decide

whom to believe, but, without the context of a coherent narrative, the

panel has no touchstone to differentiate truth from fiction.

This article will describe some techniques for counsel to create a

narrative that not only flows from the witnesses, experts and

documents, but integrates them into a persuasive whole.1

WHAT IS A GOOD NARRATIVE?

A narrative is a spoken or written account of connected events. It is

critical to understand that the narrative is not the sequence events

themselves (that is, the mere chronology itself)—it is the way the

story is told—the “account.” The critical aspects of good narrative are

the choices of which events are emphasized (or diminished) and the

explanation of the connection between them. Pooh-Bah describes

“corroborative detail, intended to give artistic verisimilitude to an

otherwise bald and unconvincing narrative.”2 It is in that detail that

good story-telling resides.

In this respect, a narrative is more than just a theme or a case

theory, although it contains elements of both.3 It is, instead, an

integration of theme, theory, and facts in a way that conveys both

logical force and a self-reinforcing structure. That means it is more

than a mere accumulation of facts hooked onto a legal argument—
instead it convinces the listener through its very nature.