Trial Themes Where You Least Expect Them
TortSource - A Publication of the Tort Trial and Insurance Practice Section, American Bar Association
“A cowboy’s work is never done.” The same holds for creative trial lawyers. Over here and over there, ideas for trial themes are everywhere. There is no need to stop with George Martin—a cowboy interviewed by the Writers Project in the 1930s—and Dr. Seuss, the respective sources for the quote and paraphrase noted above. Familiar quotations, scenes, and stories are all potential material for persuasive trial themes. And imitation is the sincerest form of flattery for the trial lawyer.
A few guidelines are in order. The theme is an effort to persuade. It must be familiar or it will not register with the jury. It must be memorable or it will be forgotten by the time decisions are made. It must provide a framework for analyzing and deciding the issues in your client’s favor.
With those guidelines in mind, good hunting. Common and familiar sayings, like the cowboy reference above, are always a fruitful source. Every good trial lawyer owns a copy of Bartlett’s Familiar Quotations or a similar collection of familiar sayings. History, and the lessons learned from it, are another fertile ground for themes. Hollywood is still another resource.
Businesses are just about the most sophisticated players in the field of persuasion. They often have entire departments devoted to marketing. One of their primary goals is to develop a brand—an identity in the marketplace that is synonymous with the product itself (e.g., Coke for cola and Xerox for copy). That is what you want to achieve with your jury.
Marketing/branding techniques are also trial lawyers’ techniques. Although many lawyers wince at the thought of a trial lawyer as a salesman, our stock-in-trade are the same: persuasion. Salesmen are trying to get the public to buy a product; trial lawyers are trying to get a judge or a jury to accept a point of view.
In one recent case, several of these sources came together to create a compelling trial theme. The case involved a shareholders’ agreement between a majority shareholder and our clients, the minority shareholders, in a close corporation. The shareholders’ agreement provided that the majority shareholder “shall determine the compensation of the shareholders for work as employees of the Company in his sole and absolute discretion.” During the five years of this agreement, the majority shareholder took from the Company amounts necessary to pay his personal loan payments, to set up off-balance sheet reserve accounts in his name, and to pay all of the related income tax liability that went with making these payments to himself. The majority shareholder relied on the “sole and absolute discretion” language to justify his actions. We relied on the “for work as an employee” language to challenge these payments.
A theme that was readily apparent to us before trial was breach of fiduciary duty. The majority shareholder owes this duty regardless of the breadth of his discretion; he denied owing one; and the concept of the fiduciary holds a special place in the law—one of trust and obligation. Thus a piece of our story line became how the Company went from the rallying cry of “all for one and one for all” to just “all for one.” This theme focused the trial on the majority shareholder’s behavior and his greed.
Themes also develop during the trial. During the opening argument in this trial, the majority shareholder’s lawyer glossed over a key exhibit. The attempt to downplay a problem gave us the opportunity to use one of the most memorable examples of understating a problem, both in history and in Hollywood: “Houston, we have a problem.” We explained in our opening that the exhibit opposing counsel ignored was an admission of a significant problem, and we tied that problem to the theme and story of our case. Thus we put a spotlight on our opponent’s problem. It got even better when the opposing counsel in his final argument decided to address our use of “Houston, we have a problem” by mocking the argument and claiming the issue was “minor” and “trivial.” We modified our closing to “Houston, we have a minor problem,” with compelling effect.
Another gem came from opponent’s counsel’s argument that the language limiting the majority shareholder’s sole and absolute discretion to setting compensation “for work as employees” was coincidental and did not demonstrate intent to limit his compensation rights. In anticipation of this argument, we had carefully gone through the agreement and found that the limitation relating compensation to being for work as an employee was found three times in that very paragraph. Our response: “Once is a coincidence, twice is a habit, and three times is a tradition. There is a tradition of limitation in this paragraph.” We also wove this theme into the cross-examination of the majority shareholder, who testified that he frequently had seen things repeat by coincidence, and that three times in one paragraph was still a coincidence. It was not a coincidence that his testimony was not found credible.
By the time closing arguments arrived, these themes had become prominent. And, yes, the other side “had a problem.” Broaden your horizons in your search for compelling themes. You might find something good where you least expect it.
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