Presenting an effective plaintiff?s case in the courtroom

• Author: Stewart Edelstein
• Pages: 185-204

185

CHAPTER NINE

PRESENTING AN

EFFECTIVE PLAINTIFF’S

CASE IN THE

COURTROOM

Unlike cases involving medical malpractice, personal injury, divorce,

and alleged criminal acts, commercial cases typically lack drama and

can be, well, boring. This chapter discusses ways to make t he plaintiff’s

presentation in a commercial case not just engaging, but compelling.

Picture yourself as the intrepid leader of an expedition. Your goal

is to get from point A (the start of the trial) to point B (a plaintiff ’s

judgment). You want to arrive there by the most direct route, avoid-

ing swamps, boulder fields, treacherous stream crossings, and the like.

Your opponent’s goal is to divert you from that path and, worse yet,

to lead the judge (this chapter assumes a bench tria l, except in the last

section) from point A to point C (a defendant’s judgment)—somewhere

you definitely do not want to go. So, how do you get to point B most

efficiently and ef fectively? You must b egin preparing for this exped ition

well before trial. Here are some usef ul tips.

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1. CHOOSE A COMPEL LING THEME

From your first client meeting, you should be t hinking about the theme

that will g uide the judge along the path to point B. As you lear n addi-

tional facts and conduct legal research, ask yourself: W hat theme fits

the facts and the law best, and will make t he judge want to rule in your

favor? Think beyond just establishing the elements of each cause of

action you assert. Your theme should be based on common sense—it

must ring true—and it should be so succinct that it would fit on a bill-

board or bumper sticker.

For example, consider these themes, all of which put the dispute in

human terms: people should live up to their promises (breach of con-

tract); cheaters should pay the price for their deception (fraud); people

should think before they speak, and a victim of someone who doesn’t

should recover his due (negligent misrepresentation); no one should take

unfair advantage of another (unjust enrichment); someone who betrays

another’s trust and confidence should suffer the consequences (breach

of fiduciary dut y); and everyone must play by the rules or be pu nished

(violation of an unfair trade practices act).

2. DRAFT YOUR COMPL AINT SO IT IS CONSIST ENT WITH YOUR

THEME

In d rafti ng your comp laint, yo u could jus t mechan ically re cite the ba re-

bones facts of your case, w ithout telling the stor y that promotes your

theme. Even though Rule 8(a)(2) provides that a complaint must be “a

short and plain statement of the claim showing t hat the pleader is enti-

tled to relief,” you have some leeway in drafting your complaint. The

judge will read it before the tria l starts. Within the bounds of proper

pleading practice, draf t a complaint that tells your client’s story in such a

way that, by the time the judge finishes reading it, the conclusion is just

about inexorable that your client is entitled to all the relief you seek. A s

you draft, ask yourself: How does each paragraph promote my theme?

In early draft s, include all causes of action that you may consider viable;

then discard the weaker counts, because they detract from the stronger

ones. Write short sentences in simple English, in short numbered para-

graphs with subheadings, as appropriate. See chapter 4, section 3, for

more about drafting complaints.

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