Libraries have shelves and shelves of books and articles full of clever tricks and tips for developing effective case theories and themes. Some are gimmicks. Some do not come close to accomplishing what they promise. I recall hearing one story about placing a bunch of case-related words in a jar and randomly picking them out. I have seen exercises that reminded me of the old Mad Libs books from my childhood years. One of the dangers in our profession is that the givers of advice can get a little too cute or “gimmicky” in their attempts to set themselves apart from others.
In my experience, the most important exercise for effective theme development is also one of the most simple, elementary, and non-gimmicky exercises out there: systematically listing out the case weaknesses and strengths. In case strategy sessions with my clients, we post those large 3M sheets up on the wall with one or two sheets a piece devoted to the weaknesses and strengths. We start with the depressing part and focus solely on the case weaknesses and vulnerabilities. Once we have listed off every weakness or vulnerability we can think of, we change gears and do the same for the case strengths. Having the list within visual reference is extremely helpful as we move into the theme development portion of the section.
From our earliest days on earth, we learn about contrast, difference, and fit. Whether it’s simple games like “which one is not like the other” or trying to fit different-shaped blocks into different-shaped holes, difference plays a critical role in our development and connection to the world around us. As we grow older and develop connections to the social fabric around us, contrast, difference, and fit gain more prominence in defining and understanding our place in the world. For example, scholars say gossip functions as an expression of our values against another’s. So while we may actually be talking about another person when we gossip, at its heart we are saying that person is different from us. Nearly everything we do involves differentiation. It happens on the levels of basic visual perception, social interaction, and self-understanding. In other words, it is the most natural thing we do.
For this reason, contrast and difference should play central roles in the development of the case presentation and the “story” at trial. There’s an old maxim that a verdict is the product of what jurors choose to talk about. This is one of, if not the most important principle that trial attorneys should understand because it is about focus, which is zero-sum. If jurors are focused on one thing, they are not focused on another. And the more jurors focus on something, the more critical they become of it. In other words, if jurors spend two hours of deliberation time discussing something, it is going to be a critical discussion of it. Jurors simply do not spend that kind of time heaping praise on something. Consequently, the case presentation should try to control the focus, or what the jurors talk about during deliberation. There are endless filters through which any set of case facts can be viewed, with each filter leading to a different outcome. In other words, jurors can put on blue-tinted glasses and see blue, put on green-tinted glasses and see green, etc. Difference and contrast in case presentation are the most effective ways to control the filter and consequently, the focus of discussion in deliberations. Continue reading →