On this week’s episode of Lawline's Lawyers Who Lead podcast, Sigalle discusses the concept of Leading with Story with Doug Passon, an experienced litigator, award winning documentary filmmaker, and sentencing mitigation video expert. Doug discusses the power of story in the practice of law and how it can help lawyers be effective leaders. Listen to the full interview below or read the highlights of Doug’s interview below! Transcribed answers were edited for readability.
Leading with Story with Doug Passon
On Wanting to be in Film and Law
Loved the Movies and Arguing My Way Out of Something
I think all of my life, I saw myself as wanting to do something in the story world. My earliest memories of what I wanted to be were either lawyer or filmmaker. A lawyer was because as a kid, I was always in trouble and arguing my way out of something.
And the adults in my life would say, rather condescendingly, you should be a lawyer because you can argue your way out of a paper bag. So that stuck with me, but I always loved the movies.
I loved loved the movies. It was bonding with dad, going to see Rocky and it was quiet in this beautiful, like this space, and there's candy. I was just so happy in a movie theater and being completely immersed in whatever world of story was going on at that time. So I think I was in high school, and I'm dating myself here because we didn't have digital filmmaking, this is like the eighties, but I was making goofy little movies with two VCRs strung together to edit, and it was always just a dream of mine.
But law school was the practical path and filmmaking was the art path. And so when I got done with college, I was a criminal justice and speech major, and it was going to be law school or film school. And I obviously went to law school. Super glad I did. All I ever wanted to do there was be a public defender, which I did for a lot of years.
But the good part is almost immediately, once I started immersing myself in the world of law, I figured out that story was going to be central to this whole endeavor. We gotta be really good storytellers because these clients are coming to us at their worst moments with their deepest problems, and you have to understand them and tell their story in a way that persuades. And so, the story stuff never left me.
On How He Approaches His Legal Practice
Traditional Legal Work in Sentencing Advocacy + Making Movies for Lawyer’s Cases
I set two separate tracks where I was learning the law, but I was reading every book on screenwriting and still making movies, little documentary things on the side. And then of course, once digital started ramping up, totally off to the races, because then it was cheap and the sky was the limit to what you could accomplish in the visual space.
So that just kind of grew and grew over the years. And I could probably keep going but, flash forward, I was maybe five years into my practice and I started making these movies for my cases.
And then it became something that really filled me up just to be immersed in that creative space, but to be able to find a way to use it, to actually advocate for our client. I said, wow. And it was really getting great results. So that kind of took off for me. I tried to figure out a way in my life and in my practice and after maybe 18 years into my practice, I said, how can I do more of the movie stuff and less of the traditional legal work?
So I still do traditional legal work all in the realm of sentencing advocacy, but my focus and most of what I do is make these movies for lawyers in their cases.
On What Showed Him Story’s Effectiveness in Criminal Defense
Video Helped Defendant Get Probation After Facing Ten Years in Prison
Every case [is a catalyst]. But I remember one in particular when I was in law school and I was clerking for the federal public defender in St. Louis. There was a young man who was charged with a pretty serious federal drug crime and these crimes have really stiff sentences. He was looking at like 10 years in prison. And he was the sole caregiver for his wife, who had a really serious auto-immune disease. Lupus, I think it was, and she relied on him for every aspect of her daily living. And we needed to help the judge understand that this was extraordinary.
Everybody has people out there who need them and rely on them, but this was, this was different. We actually took one of those big, old honkin', old fashioned VCR cameras down to the house and did what civil lawyers know to be day-in-the-life videos. So it wasn't a movie per se, but it was bringing the judge off the bench and into the world of the client to say, this is the reality of what we're talking about here.
And it was just telling the story of how much this woman relied on her husband and that if he went to jail for any significant period of time, she was going to be the one that suffered more than anybody. That guy ended up getting probation. He was looking at 10 years in prison and he got probation.
I think because we used the visual medium, I think that was the moment really the light went on that I was actually going to get to be a filmmaker, a professional filmmaker along this journey of the law as well.
On What Cases Story Has the Most Impact On
Where Advocacy is Better Shown, Not Just Argued
I honestly believe they have an impact in every single case to varying degrees. Some are home runs and some are small wins, but the idea is if you want extraordinary results, you have to use extraordinary measures. So we don't do these in every single case. We do them when it's just the exact right case.
And usually that's a case where the advocacy is better shown not just told because we lawyers, we love our words. We love to talk. We love to talk and we love to hear ourselves talk and we think we can argue our way out of everything. And we love to write these like ridiculously long briefs filled with boilerplate, you know, legalese and all this stuff.
And those words only get us so far, but when you start into the land of story, you're in a whole other plane of advocacy and there's actually brain science behind this too. Which is probably the subject of a whole other podcast.
On His Work on the Case of Ty Garbin
Radicalization Was the Story: How One Can Be Vulnerable to Radicalization, Be Healed, and Be A Cautionary Tale for Others
One of the most recent cases I worked on for video, and it's a gentleman named Ty Garbin. I don't always talk about clients and their cases, but this one was so high profile that you could Google it and you'll see.
Ty was, is a young guy, mid twenties, and was the first defendant to be sentenced in the plot to kidnap the governor of Michigan, Governor Whitmer, and that whole horrible situation during COVID.
He was facing a lot of time, but he had done a lot to come to terms with the wrongfulness of what he did and try to make up for it. But my job was to tell the story of how a kid who's never been in trouble a day in his life, who's brilliant, who had a great job, he was like an airline mechanic, he had this bright future. And he was sweet. Everybody said he's just the nicest, sweetest kid they've ever met. So how does somebody like that get swept up in this crazy, crazy thing. And we end up telling this story and it's a very similar story that we hear in any other kind of total fanaticism. Radicalization was the story and how a person can be vulnerable to being radicalized and how they can be healed and how they can actually be an example for others not to make the same mistake.
So we did a movie and the lawyers did a lot of other great work. I always call these videos the exclamation point at the end of a very long sentence. But what was most striking to me was the tone and tenor in the courtroom at sentencing. Because here you have one of the most high profile egregious situations. People were really screaming for blood and expected vengeance. I got to listen in on the sentence, it was in Michigan, I'm in Arizona, but they broadcast that sometimes for spectators, and the tone of the judge in talking to Ty when he sentenced him, it was almost like he was talking to his own son.
At that point, it was gentle, it was calm - even the prosecutor - but at that point they understood that the story we were telling was true, that his transformation was real, that his remorse was genuine, and that he was a human being that deserved compassion and consideration. Not everybody who comes before the court deserves that kind of level of consideration, but when you do the work and it's genuine and you tell the story in the right way, it changes the whole mood, it really does.
On How to Find a Client’s Sentencing Story
Every Story Should Have a Revelation, Relativity, or Redemption Story - Best Cases Have All Three
So over the years, I've sort of refined and developed what I call the three Rs. And I say, every sentencing story fits into one of three categories: revelation stories, our relativity stories, and my favorite, redemption stories. And every case I submit has at least one of those. If you haven't found it, you just gotta keep looking. But the best cases you can actually weave in all three.
Revelation, these are stories that sort of reveal what's often a hidden story or hidden truth about the client and their journey that helps give context to what they have done. And I want to emphasize the word context because we're not trying to make excuses for the behavior. We're just trying to put it in perspective and take the decision-maker on a story journey where they get to sort of understand, oh yeah, I don't agree with what he did, but I understand how it happened.
And then the home run is, and I understand how that could happen to me or someone I love could fall into this mess. And if that happened to somebody that I saw myself in, I'd want good things for them, I'd be rooting for them, I'd want to do right by them. And so the whole goal of storytelling is empathy to see yourself in the other, which is not often easy to do, especially in the criminal justice system, because there's so much otherization going on. You know my clients are often as different from the judge, as day to night. But those revelation stories help give context.
The relativity stories are comparing one thing to another. It could be this case versus another case. This sentencing guideline versus another guide, this client who has a disability or a special need, who's going to be suffering a horrible time in prison versus a healthy or a younger client who's not going to have the same special needs. So you're always kind of comparing different sets. This defendant's remorse to that defendant's remorse.
Redemption stories are what are the redeeming qualities of this person and what have they done to redeem themselves for what they've done wrong? Or what do they plan to do in the future to make sure they're never going to be in trouble again. And so the redemption stories are my favorite because I think every human being has goodness in them, I don't believe in the bad seed and so our goal is to make sure the judge sees the humanity in a client and people say, let the punishment fit the crime. And I say, let the punishment fit the person. That we don't want to judge someone just by their worst thing they've done, but by the totality of their life, and a lot of people have done a lot of good in their life. And that should balance out to some extent that one bad thing that they've done.
On Who Decides to Use Sentencing Mitigation Video
Ideally, the Lawyer Decides to Use Story for the Client’s Case
Ideally, it's the lawyer coming to me. Because if a client comes to me and the lawyer's not fully on board, or they don't really know about what these are, maybe they don't know why they need it, like, I always want the lawyer, because the lawyer is going to be the captain of the ship.
Every now and again, I'll get clients who find me on their own and they'll say, I want a video and I'll usually say, that's great, have your lawyer give me a call. Cause I don't ever want to get in the middle of the existing relationship there, and that's not what I'm there to do.
On How to Get a Client To Open Up
Don’t Start with the Case, Spend Time Getting To Know the Client as a Person
Well, this is going to sound super cheesy, but I have an old friend who was ahead of me in the parenting journey. And he said to me, when I was getting ready to have my first kid, he said when it comes to kids, Doug, I'm going to give you my best advice. The way you spell love is T-I-M-E and I'm not comparing my clients to my children, but it's the same deal. We have to build the bonds of trust with a client or they're never going to open up.
First of all, they don't know what to open up about because they don't know what's important in the case, they may be carrying around this whole lifetime of trauma and don't want to talk about it, or can't talk about it and most importantly, don't even know why it would matter in the first place. So I think that is one of our greatest challenges.
Put the story aside, the movie aside, everything aside, I think that's one of our greatest challenges as lawyers who represent clients. Because we're so busy and we're always running from point A to point B. And I think our brains are wrecked in law school because we are trained to get to the facts, what's the issue, focus in. So here's my police report, we're going to go through this, tell me if you don't agree with anything and blah, blah, blah. And that's a wrong way to represent a client, at least in a criminal case. I can't speak to other cases.
The right way for me is the first time I sit down with a client, I may have the police report, but I'm not busting it out. I don't want to talk about any of that. I want to talk about you. Just tell me, first of all, what's going on in your life? Is there somebody you need me to call? How are you feeling? Like whatever it is.
And then my favorite question is what are you into? As a lawyer, anyone listening too, have you ever just asked your client, like what makes your heart sing? Like what makes you tick? And you find out they're master craftsmen, or they play cello in the symphony? They're all inroads to storytelling and trust-building because the clients see you sitting there caring about their life story, then of course, they're going to trust you and of course, they're going to open up and they're going to tell you things you never imagined you'd ever learn in a lifetime. Right? So that is first and foremost. That is the way that we pull story out. Just by spending the time and getting to know them.
On His Favorite Stories in Movies and TV
Harold and Maude, Goodwill Hunting, Pulp Fiction, Shawshank Redemption, Breaking Bad, and Afterlife
That is a hard question. So I have like a list of my top five favorites of those, but I'll tell you the first one that comes to mind would be Harold and Maude, Goodwill Hunting, Pulp Fiction, Shawshank Redemption. The list is actually long and varies based on time and mood too. I will tell you this though, this weekend, I watched a movie that I had never seen before and it blew my doors off and I was crying through the whole thing. Uh, Guess Who's Coming to Dinner. Cause you know, Sidney Poitier just passed and I've not seen a lot of his films and this one got a lot of attention when they talked about his great body of work and man, oh man, amazing.
TV show? Breaking Bad was one of my favorites, probably Afterlife, which just wrapped up. It was only three seasons on Netflix, but anything with Ricky Gervais I love, but Afterlife just rocked my world. The list for TV is way longer because I don't know if it's because I'm ADD or I just love this shorter form of storytelling, but I watch so much more TV than I do movies these days.
On What Story Elements We Can Pull From Movies and TV
Character Development, Seeing Ourselves in Others, and Looking for Story Points that Create the Bonds of Empathy
Um, so I think first and foremost, it's character. I've got to have a character that I'm rooting for and so invested in their journey. It doesn't mean I have to like them. It doesn't mean I have to like what they do, but this is what the movies and TV are so great at. And it's what I take away in my work. I always use The Silence of the Lambs as one of my favorite examples. So Hannibal Lecter is a serial killer who murders people and then eats them.
So, as far as clients go, if he were my client (can't think of anything too much worse than that in this lifetime) yet we watch that movie and somehow we're kind of cool with Hannibal Lecter. We're interested in him and he's got a sense of humor. He's brilliant. He's an artist. You know, he cares for Clarice, he's going to protect her. And like when he gets away, and sorry for spoiler alert, but um, you know, he gets away at the end and he's going to hunt down, he's going to stop and eat this Dr. Chilton, right?
And is there anybody who is like, oh, that's really horrible, you know what a hor - no, we're like cool, man. So like we're fully on board with that. And you think, well, gosh, that's powerful that movies and TV have that ability to make us connect with somebody like that.
And so for me, that's all character development. It's Tony Soprano, it's, um, Saul Goodman, it's Walter White, and the way that we connect is we see ourselves in their journey. Or we see something about them that we really admire and wish for ourselves. So for Hannibal and his food and his art and his brilliant intellect, those are admirable qualities.
For Walter White, his story is he's just always been kind of kicked around. He was a guy who was brilliant, but never felt like he reached his full potential and he wanted something more and he wanted to be powerful and he wanted to be respected and he wanted to be the best, you know, at what he did. And even though that was like meth, manufacturing, and murder, you still connect with those qualities of wanting that human wanting.
So it's these character connections and I call them empathy points. And I look for those in my work. How does this person who maybe doesn't look like the judge. Maybe they don't have the same educational background, economic, socioeconomic, like I said, different as day to night. How can we start to see ourselves in them? And so that's the story, that is all we're doing with stories. We're looking for those story points that create the bonds of empathy. So that's the guiding light for all the work that I do.
On Why It’s Vital to Have Lawyers Work on Sentencing Mitigation Stories
Lawyers Understand the Full Legal Perspective Including Ensuring Videos Conform to Legal and Ethical Standards
There are good, qualified, production people, and they're really good at storytelling and they're really good with the camera and everything else, so they can make a movie that looks good and sounds good.
But the problem that I find is twofold. One, they don't have the perspective about the other side of this, which is what happens in court. What moves the needle? What is a judge looking for? What is the judge going to be kind of upset about? Gratuitous use of children, for example? Unless you have a really good reason, a judge is going to feel like you're just trying to manipulate. So they don't have the full perspective of the legal arena to know exactly which story is going to be the best story to tell.
The other thing is really documentary. What's the first chunk of the word documentary? It's document and I look at these as a legal document. Again, we could go down this rabbit hole because I think a lot of people, that's the main critique. It's not valid, but what you'll hear about sentencing videos is that this is somehow not true, that it's because it's movies, it's fiction, it's tricky editing. It's none of that stuff. Like any other document that we present in court, it's a legal document and it has to conform to legal standards and ethical standards.
And when you do an interview, for example, it's a very different interview than a deposition. It has a forensic element to it and all that stuff could be discoverable in the course of a proceeding. And so it makes sense to have a lawyer deeply involved along the way.
On Advice to Lawyers Using Non-Lawyers For Sentencing Videos
Don't, But If You Do, Always Be the Director and In Charge of the Story
If you don't have a lawyer doing the video end of it, then there are pitfalls. But if you go that route, my best advice is you, lawyer, who brought this video person on, you are the director of this film. The director is always on set. The director calls every shot. The director knows the script backwards and forwards. The director is in charge of the story and every other element of it.
So the worst thing you could do is just hire a production person and say, okay, please go make a nice movie about this case and not be involved. It's a recipe for disaster.
On His Book, The Narrative Gym for Law
The And, But, Therefore (ABT) Framework for Persuasive Advocacy
The ABT framework is a one sentence template that conveys the core elements of narrative. We call it the DNA of a story. So it's invented, created by a gentleman named Randy Olson. And Dr. Olson was in the science world, Harvard PhD, biologist, marine biologist. Then he went to film school and he learned story, and he's a story expert and his sort of mission was to make scientists better storytellers because they're very data-driven and kind of dry sometimes in their presentation. So he distilled a thousand years of story magic all the way back to Gilgamesh and Aristotle, all the way forward to McKee and Syd Field.
And I'm sure you know all these books because there's a million of them out there and the trouble is there's a million of them out there and it's you know, it's deep. There's a lot of different moving pieces to story structure.
So this isn't about the content, we're done with that, we're at the forum now. How do you put together a story? We've been looking for so long for a very tangible way to just do this. And so the ABT makes it simple. It stands for, And, But, and Therefore. And these are the three core elements of all good narrative communication. And if you go back, you'll see that they've always existed. It's just this Dr. Olson gave a name to it and identified it and put it in this framework. But, if you go back to the Gettysburg address or Martin Luther King's I Have A Dream Speech, you'll see the structure, it's there. And if you're a Joseph Campbell fan, the hero's journey, it's the same thing, just boiled down to its essence.
So A "and" material is this ordinary world, this calm place where we can all agree with each other and connect with each other and draw us in. But that's not a story if it's just and and and and, that's boring, it's confusing. I'll give you an example, and it's in the book, Miranda!
Miranda is an example of non-narrative, boring, confusing communication. That's why almost every one of our clients waives their rights and talks because it's all "and" material. You have the right to remain silent and anything you say can be used against you. And you have a right to a lawyer. And if you can't afford one, we'll get you one and you can stop talking - anybody asleep yet?
So what you need in narrative is the "but". The "but" is the most important thing because the "but" is what activates the brain. It's what makes you lean in and pay attention. It's a fundamental expression of the problem that you're trying to solve.
And the "therefore" is the solution. It's the resolution. So the "but" is the conflict, the consequence, and every good story is just filled with "buts". Everything is an obstacle, a problem. You know, I just talked about Guess Who's Coming to Dinner and I noticed they kept using the word problem in this story over and over. And I was like, wow, I've never heard the word problem come up in a script so many times. So I actually downloaded the script and did a word search. Problem is in that movie 27 times.
But that's what a good story is. You define a problem and you solve the problem and so that "therefore" is the solution. If you want an example from a movie, the problem solution dynamic: a boy discovers an alien in his backyard. Aw. And they become really good friends. Aw. So that's the "and" land, but he soon figures out that this sweet creature is going to die if it stays on earth, therefore, he's got to phone home, and outsmart the government and get back home.
Yeah. It's a great movie, but that's ABT. I call this a gateway drug, because once you get your foot in the door, the lights go on with, I get it ABT. Then you start to see how that's really just a reflection on all the great story models over time. So then you start to get kind of curious and go, what is this hero's journey stuff?
Why Narrative is Leadership
People Follow Those with the Intuitive Ability To Establish Context, Present The Problem and a Very Cohesive Solution
Narrative is leadership. People don't follow leaders who bore or confuse. They follow leaders who have the intuitive ability to establish the context and present the problem and present a very cohesive solution to that problem. So that's all we lawyers do. We solve problems and that's all story is a problem solution dynamic.
And I want to just say one last thing on this subject. If you don't lead by constructing that narrative, you can just present all this and material you're giving someone else the permission and the ability to create, take that material and make their own story out of it. And you're not going to like it.
You're not gonna like what story they make, because it's not going to be the one that you're setting out to tell. And that's a trap that we fall into and I see a lot of lawyers, especially in the criminal sentencing context fall into, which is, judge, he's homeless, or he had a drug problem, or he was beaten by his parents and okay, that's all important, but you haven't given me this story so what am I supposed to do with that? Assume that they're so damaged, that there's no hope for them and they're just going to keep committing crimes. So I better send them to prison for as long as possible? What's your story and that's a leadership thing.
On a Leader Who Really Made an Impact on His Life
His Son, Nate, Who Has Shown Him the Freedom and Peace in Letting Go
I'm probably not going to be able to get through this without crying, and I hope this doesn't come off as cheesy, but it'd be my 17-year-old son. He's on the autism spectrum and I see the way he walks the world with so much grace and determination that I'm constantly in awe of him.
He's taught me a million lessons throughout life so far, and he's only 17, but I think one of them is that I think life is very much a journey about letting go, letting go of this expectation or this script, the way you think something's supposed to be or needs to be and once you can embrace that, there's a great freedom and peace to it. And so Nate has taught me those lessons and many, many more.
On Misconceptions About Sentencing Videos
They are Not Manipulative and They Are Not Just For the Rich
I mentioned earlier this idea that sentencing videos are somehow manipulation and that if you bring in these great tools from Hollywood, that you must be doing something shady and manipulative. And I say, hate the player, don't hate the game. Hollywood is not the problem. Hollywood has the recipe for amazing storytelling. They just don't do it well all the time. So what we're really doing is saying we don't like some of the content, but the form is unimpeachable and the form goes way beyond Hollywood.
But the other misconception, this idea that it's just for rich people. That only people with resources can afford a tool like this. And the truth of the matter is this was born and raised in the public defender system. I was a federal public defender when I started doing this and teaching lawyers across the country to do it. And the people who have federal public defenders and other public defenders, they get this tool very often, maybe as much, if not more so than people with private resources.
So you do not need a ton of money and a ton of know-how to get something like this accomplished.
On His Favorite Self-Care Practice
“If I Have a Guitar in My Hands, Everything is Right in the World”
Well, before the pandemic, it was going to the movies and when I was a public defender and the week had just kicked me into oblivion, on Friday afternoon I'd leave and I'd go to the matinee. I'd go see a movie at the movie theater down the street from my office. I chalk it up as professional development and you should too because every movie you watch and every TV show you binge is just a lesson on storytelling. Good storytelling and not so good storytelling.
But that in and of itself should be a great gift to every lawyer because our job is hazardous to our health, it's stressful. A lot of people don't make it out alive and anything we can do to give ourselves that gift we should do.
So for me, it was going to movies, but music more than anything. And if I have a guitar in my hands, everything is right with the world. That's it.
On the One Thing He Would Change in the Legal Industry
At Every Angle, Every Avenue, More Humanity In The Practice Of Law
It's got to be the fact that humanity is stripped out of the process. I think we've got to start right at law school at the very beginning. You know, we read these cases and we never even consider the fact that these are like real life people who had steel girders dropping on their heads and the burned and hairy hand from, from the paper chase, these are real people.
I think that gets lost from the very beginning, because we're so concerned with issue, rule, application, conclusion, we carry that forward into our practice and we're somehow taught that we need to be disengaged and dispassionate and that's how we really are the best. I don't believe that. I think the process, especially the criminal process, is built to strip humanity out of it. Look at the sentencing guidelines. It's a table with numbers on it. We plug in the numbers and that determines years and years and years of a person's life, that's wrong. And so at every angle, every avenue, I want more humanity to be injected into this process.
Lawyers Who Lead is a weekly podcast that celebrates lawyers who are making powerful changes through extraordinary leadership. Each week, Lawline’s Chief Storyteller, Sigalle Barness, interviews a lawyer who is driving meaningful change in the legal industry. Guests represent a diverse and exciting range of experiences but with one common thread, the pursuit of bettering the legal profession.
Each episode explores the guest’s journey to leadership, the underlying principles that helped them make an impact, and devises ways listeners can apply these concepts in their own lives.