Articles / Reviews

Kathleen R. Pasulka-Brown,
New York Law Journal

New York Law Journal Book Review
Eric Oliver's book, "Facts Can't Speak for Themselves: Reveal the Stories That Give Facts Their Meaning," demonstrates why attorneys need to adopt new ways of thinking about how to prepare and present their cases and explains how attorneys can implement required changes. Attending to and applying the teachings in this book will enhance attorney presentations and substantially increase the likelihood of favorable results for their clients.

Oliver initially argues that the traditional case preparation method is flawed. That method essentially presumes that the storyteller (i.e., the attorney), on the one hand, and the background and beliefs of the jurors or decision-makers who hear a case, on the other, are the main variables that will impact a case's resolution. According to Oliver, that presumption ignores a third and vitally important variable – the case story.

In light of the generally accepted view that decision-makers, regardless of who they are, decide cases based on the stories they themselves create to understand the facts and law presented to them, Oliver argues that attorneys should devote substantive attention to the stories the jurors will create. The critical importance of doing so lies in the fact that "the story each decision-maker constructs controls the sorting of facts by significance within that story; it determines how much each fact will be emphasized, and even which facts have more perceived use within the story constructed."

To craft the most effective possible case story, Oliver advocates the use of focus groups. He explains how attorneys should prepare such groups, present cases to them, elicit useful feedback from them, and use that feedback to develop case stories, prepare effective case plans and deliver presentations that will invite decision-makers to rule in their client's favor.

Throughout the balance of the book, Oliver identifies and discusses a number of story- building processes of which attorneys should be aware and describes various techniques attorneys can use to discover, develop and present effective case stories. More specifically, he provides a clear and detailed description of the three-step process decision-makers use to build the stories on which they will base their decisions.

One step in the process is the habit of decision-makers to perceive and learn about a case from all of the verbal and nonverbal information that is presented to them by attorneys, written and spoken words, tones of voice, facial expressions, and demonstrative exhibits. Oliver says that decision-makers, in order to bring order to their perceptions, reference and compare their perceptions to their own life experiences, memories, past impressions, emotional reactions, attitudes, ideas, beliefs and habits. Because this step in the story- building process is a largely unconscious one, however, focus group members are unable to directly report on it.

Accordingly, Oliver describes methods by which attorneys can prompt focus group members to reveal the types of references that may be made so that the attorneys can perfect the case stories they will present. Oliver explains that the third step in the process is when jurors connect reasons and justifications to their personal understanding of their own perceptions, which, then, enables them to reach decisions.

Oliver further dissects the story-building process b identifying various perceptual patterns, mental processing habits and psychological factors that impact it. He explains how attorneys, using focus groups, can discover the degree to which these patterns, habits, and factors may impact their cases and describes ways in which attorneys can incorporate this information into the stories they present so as to maximize the likelihood of obtaining the decisions they desire.

Oliver ties together all of the story-building information he presents by demonstrating how attorneys can use it to develop the elements essential to every case story, namely: theme, scope, point of view, and sequence. He also provides a number of concrete examples that effectively illustrate how case stories can be altered to incorporate he information focus groups provide.

In conclusion, Oliver explains how attorneys should present the case stories they develop. After noting that it is imperative to include visuals in such presentations, he emphasizes the need for balance between the verbal and visual portions of a presentation. He then provides useful and detailed information about how to determine when and how visuals should be used, what they should depict, how they should be prepared, and how they should be handled.

"Facts Can't Speak for Themselves" provides a wealth of information that neither trial attorneys nor those involved in legal education can afford to ignore. It will provide seasoned attorneys with concrete methods by which to enhance their traditional case preparation techniques and teach new attorneys how to think about and prepare the cases they will handle. For educators, this book should serve as a springboard from which to redesign trial advocacy-related courses and seminars so that attorneys will walk away with tools and techniques that will enables them to craft and more effectively present the case stories by which their clients will be judged.

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