By Thomas M. O’Toole, Ph.D.
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.
At this point, you may be thinking this blog post is a mere statement of the painfully obvious, but as one of my favorite authors David Foster Wallace would say, I would ask you to bracket for just a few minutes your skepticism about the value of the totally obvious. Here are two ways that you might not have considered that the simple exercise of systematically listing out your case strengths and weaknesses can help with effective theme development.
1. It is shocking how often someone identifies weaknesses or strengths in the strategy sessions that no one else had considered. Obviously, as the jury consultant in the room, I am going to bring this perspective. That is not a surprise. But I am talking about members of the trial team. It’s amazing how often the associate or paralegal raises a concern about a weakness that the lead attorney had not considered. This is the first way in which this simple activity can help you develop a broader view of the case that is so essential to effective theme development. It can help you gain a more complete understanding of your case and how others might view it. Get your trial team and the client in a conference room and go through this exercise as a group. Encourage everyone to add to the list. It will help you identify opportunities and vulnerabilities in the case that might not have otherwise been recognized.
2. If you follow my publications, you know that I have a strong belief that the real art of strategy development is fact selection. Any single case has hundreds if not thousands of facts associated with it. Jurors care (and think) about few of these. At the end of trial, research shows jurors will remember as little as 10% of them. The best strategies are those that narrow the case to a few essential facts that tell the jurors everything they need to know about the case. In other words, those few facts create at thematic pattern that tells the story for you. In my experience, the exercise of systematically listing out the case weaknesses and strengths serves as a critical springboard for seeing the various patterns and directions that you can go with the evidence and testimony. There are so many opportunities and minor variations in the selection of central facts that can fundamentally shift the issues in the case to ground that is more favorable for the client.
Generating the list of weaknesses can sometimes be a difficult process. There is a constant temptation explain away weaknesses or focus on the response to the weakness. Don’t fall into this trap. Get all of the weaknesses up on the list regardless of how impactful you believe them to be.
To quote David Foster Wallace again, sometimes “the most obvious, important realities are often the ones that are hardest to see.” It is too easy to sit back and think that you do not need to waste your time with such an obvious and simple exercise. After all, you are a good attorney…of course, you know what your case weaknesses and strengths are! But you would be surprised what happens when you get in a room with your trial team and client and force yourself to verbalize them. This simple exercise can open all sorts of doors.