Developing a Story Framework

In our previous blog, we considered the basics of legal storytelling and noted the critical role of theory and theme in driving the story. In this installment, we’ll explore how to use an analytic framework to build your client’s story, initially from the claimant’s perspective, then, in later posts, the respondent’s.

Claimant’s Goal

The arbitrator’s final decision will itself be a story based on the applicable law, a theory of the case, and, often implicitly, a theme (Fig. 1).  Counsel’s goal therefore is to present the claimant’s case as a compelling story that aligns with the legal elements of the claim and positions the claimant on the moral high ground.

Fig. 1

Simplexity

An effective tool for building your client’s story is Pixar’s technique of simplexity. Ricky Nierva, a production designer at Pixar explains in The Art of Up:

[Simplexity] is the art of simplifying an image down to its essence. But the complexity that you layer on top of it – in texture, design, or detail – is masked by how simple the form is.[1]

Story Framework

In legal storytelling terms, simplexity means starting with the decision the client seeks, identifying the elements of the legal cause of action underpinning the decision, adding essential facts the arbitrator must find for each legal element, and layering on evidence that supports each essential fact and the story’s theme. The apparent simplicity of the final decision belies the complexity of the developmental process (Fig. 2).

Fig. 2

I’ve created a chart (Fig. 3) to illustrate the initial stages of constructing the story, using the case of Queen  v. Cognos.[2]

Basic Facts of the Case

Mr. Douglas Queen applied for a senior position as an accountant at Cognos Inc. in Ottawa, working on a project to develop a new product line. During the interview for the role, the manager of new product development assured Mr. Queen that the project was a significant endeavor spanning several years, and he would hold a senior position within it. Crucially, the manager did not disclose that senior management at Cognos Inc. had not yet approved funding for the project.

Mr. Queen accepted the position, relinquishing a well-paid and secure job in Calgary, and relocated his family to Ottawa. He commenced work in April, but five months later, in the absence of senior management approval for the project, he was reassigned. In October, his employment was terminated. He alleged that Cognos Inc. had misrepresented the position that he had accepted, and this resulted in his financial losses.

Decision

The first step is to decide what remedy the claimant seeks. Is it damages, a declaration, an injunction, or something else? Setting a clear goal early in case development will help you frame your case, develop your theme, and focus your legal research and fact investigation. If you do not identify your specific goal, you are far less likely to attain it.[3]  Here, the remedy is damages.

Elements of Cause of Action

Counsel has determined that the claim will be based on negligent misrepresentation. The legal elements of negligent misrepresentation are: (1) there must be a duty of care based on a “special relationship” between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.[4]

Essential Facts

The theory of your client’s claim consists of essential facts that align with the legal elements of the cause of action. When carefully sequenced, they imply causation and form the plot of your story.

Fig. 3

Basic Plot

The sequence of essential facts forms a basic plot:

Q applied for a senior position on a major project with C Inc. C Inc.’s interviewer told Q that the project was planned for 2+ years but did not disclose the project had not yet been approved by senior management. Not knowing that the position was speculative, Q took the job.  The project, however, was not approved, and as a result, Q sustained financial losses.

What’s Next?

At this point, we have the basic plot of the story. In the upcoming post, we’ll look at identifying and layering evidence to support the claimant’s theory.

[1] Tim Hauser, The Art of Up (Chronicle Books, 2009) at 18You will find interesting examples of simplexity at work at the Pixar website <https://www.pixar.com/>.

[2] [1993] 1 S.C.R. 87, 1993 CanLII 146.

[3] As Yogi Berra put it, “You’ve got to be very careful if you don’t know where you are going because you might not get there.  https://www.brainyquote.com/quotes/yogi_berra_124868.

[4] [1993] 1 S.C.R. 87 at 110.

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