Creating and developing winning themes and arguments.

• Author: Gonzalez, Ervin A.

A trial plan should be built around a theme that will define the case and allow the jury to rally around that theme.

A winning trial attorney recognizes that to reach the goal of a successful verdict, you must first develop a plan of action. The plan that you use to prepare and present the case must have meaning and direction. In order to achieve this, your trial plan should be built around a theme that will define the case and will allow the jury to rally around that theme.

To be victorious at trial you need to do more than just present the facts and the law so as to allow the jury to decide the case. It is important to discover the heart of the case early enough in the litigation so that the winning theme may be developed through discovery and presented to the jury properly. Once established, the theme should tell the jury in very few words what the case is really about.

Importance of Trial Themes

Trial themes bring the case to life and help the jurors form impressions to assist them in understanding the case. It is important to appreciate the power that certain words have and the responses that they create in the jury's collective mind. A good theme that uses powerful words will prove to be very persuasive and effective.

Attorneys are often described as storytellers. The difference between the storyteller and an attorney is that the attorney is required to prove that his or her client's story is true. By starting the story with the theme and presenting evidence that supports that theme, the jurors will be able to follow the story and the evidence in such a way that will enable them to determine that the evidence and facts in the case support the story, thus leading to a successful result at trial.

Creation of the Theme

The creation of a successful trial theme is not easily achieved. We are not trained to do this in law school. Attorneys are taught to think logically and to worry about proving every element in a case. Unfortunately, jurors do not necessarily think that way. What you feel is important and what a juror may think is important may be completely different. Thus, it is essential for you to present concepts in a case to which the jury can relate, while supporting the record with the necessary proof required to survive a motion for a directed verdict.

How do you create a theme? After you have fully discussed the case with your client and reviewed the key documents, sit down with your associates, partners, or paralegals and...