He who tells the best story wins

Announcer: We promise we are not a bunch of stuffy old lawyers saying stuffy old things. You heard that right, this is the Insight to Injury podcast sponsored by Osterbind law, PLLC. The podcast that reports to you, Central Virginia, about what's going on in the injury and disability world. We answer all the questions you don't even know to ask. Now, here's your host, Brandon Osterbind. Let's get started.

Brandon Osterbind: Thank you so much for joining us today. We're excited that you're here with us for episode three of the Insight to Injury podcast. Now, today I want to talk about a concept that I talk about a lot internally, but I don't necessarily talk about a lot externally. And I want to somewhat fix that problem because I think people need to think about this when they approach a personal injury case, a workers' compensation case, an ERISA disability case, med-mal case, or a wrongful death case, any type of disability or injury type of case that you may be dealing with. And it's something that people don't talk about a lot because it's not something that people really want to do. And I've talked about this before on this podcast, that people, in general, are not heavily litigious individuals and most of the people that I deal with don't want to go to court. They don't want to tell their story, but they're faced with a problem that they need a solution for.

Brandon Osterbind: But if you are going to achieve the solution that you want, if you are going to get the desired result, a lot of times you have to figure out what that result is and then backtrack your way to how you are going to get there. And one of the ways that you do that is you have to figure out, what is your story? And I think the ultimate lesson here is, is in the title of the podcast, he who tells the best story wins. Of course, this is gender-neutral, it could be a she, it could be a he. I think the old saying is, "He who tells the best story wins," but it could easily be transposed to say, "She who tells the best story wins." This is not a he/she question, it is a, the person who tells the best story wins, and people are able to tell compelling stories, but often we don't.

Brandon Osterbind: Why don't we tell compelling stories? And this is most frequently the case in situations where an individual finds himself or herself in front of a jury of peers, or in front of a judge who is going to be making a decision. Or in ERISA Disability cases, perhaps, in front of an adjuster who is making a decision about a disability claim. So, it could be any one of those scenarios, but you are unable, or perhaps the best term is unwilling, to completely tell your story in a way that will compel the listener to drive that listener to the result that you ultimately want. And I want to talk a few minutes about why we should focus our attention on telling a compelling story, as opposed to just reciting a laundry list of facts.

Brandon Osterbind: And the first thing is, it's simple, notice I didn't say that it's easy. I said that it's simple to create a compelling story that people can resonate with and it just takes a little bit of effort to sit down and to boil it down and figure out exactly what parts of your story need to be told, and how those parts of your story needs to be communicated, in order for the listener to feel the result that you are trying to accomplish. That's the first thing. The first thing is, it's simple. Anyone can tell a story. It's not easy to tell a story, especially a compelling story, but it is simple if you do it the right way. Second, everyone loves a good story. Now, tell me the last time someone said, "Let me tell you a story," and your ears didn't perk up, your body leaned forward and you started listening with your eyes and with your ears, your whole body language changes when someone starts off the conversation saying, "Let me tell you a story." Everybody loves a good story.

Brandon Osterbind: Third, everybody remembers a good story and I think that is crucial when you're talking about a jury or a judge. If the jury is going to deliberate over your case and give you a verdict that will decide your fate or decide your case, and whether you get a good result or a bad result. Did you arise victorious at the end of this story or did you fall on your sword and say, "It's all hopeless. There's no hope left for me. I'm done. I'm tapping out. Consider me over."? How does your story end? Every remembers a good story and a good story will appeal to all types of learners. That's number four, a good story will appeal to all types learners. Of course, you know that there are three types of learners.

Brandon Osterbind: One, is visual, they like to see something tangible that will help them learn. The second type are auditory learners, these are people who can learn by simply hearing things and they hear facts and figures, and they can remember those things like it's the back of their hand. These people don't need to see things. They may even close their eyes and yet still remember more than you learn from reading the page. And the third type of learner are kinesthetic learners, these learners learn by doing. They have to physically touch the page, they have to physically handle the photograph. If you're talking about creating something, they have to physically work through every single step in order to know the progression of events, these people have to put their hands on something. But all three types of these learners can hear, and can understand, and feel when you tell them a story.

Brandon Osterbind: If you try to stand in front of a jury of your peers and you try to give them all facts and figures using the same method, the audible learner method, then the visual learners will be left out. The kinesthetic learners will be left out. But if you can craft a compelling story, you can captivate all three of those folks. And the last reason you want to use stories is because stories make people feel, they make people feel the emotion, the distress, the trauma that is in your life. And if you can't make people feel you will never compel them to deliver a result, and in that instance, all is lost. The entire effort is wasted. Why even begin if you cannot adequately communicate your story? The truth is that the jury doesn't know you, the jury doesn't care about you. The judge doesn't know you, the judge doesn't care about you. They're not going to bend over backwards to accommodate you or your feelings, or your emotions, or your trauma, or your healing, or your residual pain.

Brandon Osterbind: The jury and the judge are going to make a decision based on facts and figures put before them and they're going to walk away and a lot of times they're going to think they did you a favor. And you won't understand because you have lived it, you have felt it, you have breathed this trauma for the better part of several years, and you may be upset, but ultimately it's your responsibility to communicate your story in a compelling way. Paul Smith, who wrote a book called Lead With a Story, not really a personal injury book or a wrongful death book. It's just a book about stories, and leadership, and business, and everything in between.

Brandon Osterbind: But one of the things he said that I thought was compelling is, "That people are naturally more committed to their ideas than they are to your ideas." The story technique turns your ideas into their ideas. So, don't focus on telling a jury what they should do, focus on telling the jury a story. Tell the jury the story and make them feel what you have felt. The lawyer can't necessarily do that, that is up to you while you were on the stand telling your story. It's not the lawyer's story, remember, it's your story. It's your story alone, and it's up to you to communicate that effectively. So, let's walk down the path and let's answer the question., How do I tell a compelling story? What do I need to do to tell a compelling story? Chief justice John Roberts said, "Every lawsuit is a story."

Brandon Osterbind: No matter what it's about, every lawsuit. So, the first thing I'll say about telling your story is that every sentence has to move the story forward chronologically. You can't just start recounting fact after fact, after fact, after fact because that gets boring. Details are boring. That is not a story that is telling a data dump to a jury or to an adjuster. Your job, on the other hand, is to move the story forward chronologically so that the jury can stay involved in how the story progresses. The jury can understand from start to finish what happened and that is what keeps the jury's attention. So many times I've seen jury trials and I've seen jurors sit back in their chairs, they kind of roll their eyes up in their head, and they fake listening because all they're hearing is fact, after fact, after fact, in no discernible order and they just are inundated with information that is essentially useless.

Brandon Osterbind: If you took the time, however, to craft your story and to make sure that the facts and the questions and the answers, they progress chronologically and they advance the story forward to its ultimate conclusion, that will keep the jury's attention so much better. It's important to remember, secondly, that stories are about people. In any good novel you'll have your protagonist and your antagonist. Your protagonist is ultimately the lead character, the hero of the story, who encounters an antagonist, who is the evil person in the story, who creates friction in the story and who is somehow preventing the hero from accomplishing that which the hero wishes to accomplish. And you have that in these cases, in personal injury cases, you have it a lot where you have a plaintiff and a defendant, someone who is just trying to work and support their family and be there for soccer and basketball games for their kids, and go to church and do chores around the house, and be a generally productive individual. That's the beginning of your story.

Brandon Osterbind: And then the antagonist comes along and throws a wrench in that entire system. But every story has a protagonist and an antagonist, every good story does. So, that's what we have and in situations like a workers' compensation case or a ERISA disability case, those antagonists are not necessarily people, but they are diseases or injuries. And the antagonist is not necessarily a person, but it's a circumstance or a thing and you have to describe that circumstance or that thing as if it were to come to life and provide real friction for the protagonist. So, each compelling story is about people. And third, compelling stories have friction and the hero overcomes. I've encountered so many people who are the heroes of their own story and they have seen these circumstances as obstacles to prevail over and that is what a jury wants to see.

Brandon Osterbind: Every person who goes to a movie theater wants to see the good guy win, you don't want to see the good guy die at the end, you want to see the bad guy die, not the good guy. So, every story has to have friction and the hero has to win over that bad friction. So, you have to be willing, in the moment, when those decision points are made, you have to look at it in the bigger picture. Does this decision make me a winner or does this decision make me a loser? And how is that decision going to look to a jury? So, when it comes to, "Should I get this injection? My doctor said I need to have this injection. Should I get it?" The answer should be, "Do you want to win over the antagonist?" If the answer is, "Yes." Yeah, go get the injection, do whatever it takes to get better.

Brandon Osterbind: The jury wants to see an individual who is injured, who is the protagonist the jury wants to see you win and the jury wants to see you try every single thing that you can to get to that place where you can win. So, yes, make every single decision go through this prism of, what is my story? The next thing I'll say, the fourth thing, is that good stories have a moral, you've heard the phrase, what's the moral of the story? If every story has a moral, then you should be asking yourself, what is the moral of my story? What is the moral of my story? Is there a lesson that people can learn coming from your story such as, don't text and drive or, or maybe your resilience has led to a cure. What is the moral of your story? Will the jury see you as a person who is willing to be an encouragement to others?

Brandon Osterbind: A person who is willing to set the example for how we ought to live this thing we call life together. That is what a jury wants to hear, they want to see this person succeed. They want to see you win and they want to see you prevail over the antagonist. And then the last thing, if you can create all of these things, if you can line these things up and then knock them down, the last one will be easy. You'll make the listener your advocate. The fifth and final point is that you will make your listener your advocate. How do you do that? The jury will take the information that you've given to them, they will retire to a jury deliberation room and they will talk about what they heard in court. They will weigh the evidence, they will determine who do we want to win, who do we want to lose? And sometimes it's a crap shoot.

Brandon Osterbind: The jury have no idea what a jury is going to do. In civil cases, it's seven people, they sit in this wooden box, sometimes on uncomfortable chairs, and they spend an entire day, sometimes two, sometimes five, it just depends on the case, but they spend a lot of time sitting there listening to information. Some of it they may have consumed, others may have gone right over their heads, but believe me when I tell you that they will remember your story, if it's compelling. I hope this has been helpful conversation with me about how to tell a story and I really do truly believe that he who tells the best story wins. And sometimes you don't tell a good story and sometimes you're not a good storyteller, all of those things can be worked on, all of those things can be harnessed. All those things could be better.

Brandon Osterbind: So, work with your attorney, work with your friends and your family to figure out what is your story? How do I tell my story in a way that keeps moving the story forward chronologically? How do I illustrate how I'm the protagonist, not the antagonist? There are so many different reasons why juries automatically believe that the plaintiff is the antagonist because they think that as corporate America has told them, that if you spill a cup of coffee, you make a million dollars. As an aside, I'll urge everyone to go watch the Netflix documentary on Stella Liebeck and the McDonald's million-dollar hot coffee case because there is so much more to that story than you could ever imagine in the country line, spill a cup of coffee, make a million dollars. And it bothers me every ... I like country music but it bothers me every time I hear that song, every time I hear that line because I've seen the documentary, I know about the injuries that Stella Liebeck incurred.

Brandon Osterbind: I know what McDonald's did with over 700 complaints of third degree burns from that McDonald's store. And I know that McDonald's should have done and could have done a lot more to protect the people that go through their drive-through. So, while that case is certainly an odd set of facts, there is so much more to that story that most people don't know. And again, he who tells the best story wins. In the courtroom, the plaintiff told the better story, but in the media, McDonald's has told the better story. So, at the end of the day, who really won? Think about that. Next, are you the hero of your own story? Are you overcoming the friction that has placed in your path? Next, does your story have a moral? What lessons can you teach to other people who may be going through the same situation to avoid the same degree of friction that you may be experiencing right now?

Brandon Osterbind: And last, does the listener of your story want to become an advocate for you because of your story? So, use all of this information to help craft your story as you're going through this process, as you were living and breathing this trauma that you've experienced, this condition that you're experiencing right now, and all the things that you're going through. Yes, please take a moment to think about it, maybe even write it down. Clarify your thoughts through pencil and paper, so that you can understand how your story fits in the grand scheme of things. Thanks for joining us this week, the Insight to Injury podcast. It's been fun, it's been real, and it's been real fun.

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