The Practical Litigator | 39

Marlo Orlin Leach

The theme frames your case. Build it carefully.

As triAl lAwyers, we all know and understand the importance of developing a good, effective trial theme. The theme keeps the jury focused on what you have de-termined is the key to the case. Some feel that the most difficult part of preparing for trial is determining what theme best fits the case. In fact, theme development can and should be one of the most enjoyable parts of trial preparation. It can be difficult, however, if it does not begin early in the case. Indeed, before drafting the complaint or answer, you should start thinking about the theme of your case. Of course, it need not be written in stone or even fully developed right away, but by thinking about possible themes in the infancy of the litigation, you can develop an overall strategy, fine-tune written discov-ery, and craft deposition questions that will feed nicely into your theme. You can also learn which themes may not work at trial.

wHy DeVelOP A tHeMe? • Why is a theme so im-portant? Why not just tell the jury the facts of the case, show them why your client is right, and let the judicial system take its course? The problem is that jurors do not think like lawyers, and we as lawyers tend to forget that jurors do not know the case as well as those who have been living with the case for years. The jurors walk into the courtroom as blank slates with respect to the facts of

Marlo Orlin Leachconcentrates her practice at Powell Goldstein in Atlanta in products liability, environmental, personal injury, and general commercial litigation. Ms. Leach has experience in a variety of complex cases, including business disputes, real estate and partnership disputes, RICO and fraud claims, breach of fiduciary duty claims, breach of warranty claims, and complex contract matters. She has defended actions involving toxic torts, indoor air quality, and the manufacture and use of tools, machinery, and chemicals. She can be reached at mleach@pogolaw.com. This article is based on a paper the author prepared for a seminar sponsored by the ABA’s Tort and Insurance Practice Section.

Common Themes For A Successful Trial

40 | The Practical Litigator September 2008

the case. They sit in the jury box for days, weeks, or months, and hear hours and hours of testimony, much of which is not always scintillating. One can only speculate as to what evidence the jury will re-member, understand, and focus on during the trial and deliberations. Unlike the lawyers and the parties, jurors are not emotionally attached to the case. They need to be. That is why a good theme is critical to the suc-cess of the case. The theme allows the jurors to lis-ten to the evidence, while at the same time relating it back to the message that you have told them is the key to the case. Whether the theme is account-ability, responsibility, or greed, it allows the jury to connect the evidence with something they under-stand and have experienced themselves. That is the key to developing a theme. In other words, you want the jurors to listen to the five-hour testimony of the company representative and at the conclu-sion of the testimony, connect the evidence they just heard to your theme. Thus, if your theme is “safety first,” you want the jurors to conclude that the testimony they just heard shows that the com-pany truly is committed to safety first. The jurors may not remember everything that was said during the entire five hours of testimony, but because you have established your theme from the beginning of the trial (voir dire) and designed your direct exami-nation around that theme, at the end of the day, the jurors’ final impressions of the testimony hopefully are consistent with the theme you have created.

wHAt sHOUlD tHe tHeMe ACCOM-PlisH? • The theme of the case should be articu-lated in as few words as possible. The fewer the bet-ter. Less is more. Although it should contain as few words as possible, the theme should be articulated throughout the entire trial. But if the theme is too short, what can you hope to accomplish with such a dearth of words? Everything. Emotion. Under-standing. Victory. The theme is what should give

you focus before and during the trial, and most im-portantly, it, too, gives the jury focus. The theme is your entire case summed up as briefly as possible. Remember, the first thing all ju-rors want to know from the minute they walk into the courtroom and even before the first voir dire question is asked is, “What is this case about?” Your goal is to answer that question while at the same time persuading them with the theme that your cli-ent deserves to win—ideally in 10 words or less. For example, is the case about allegations that your client manufactured a widget that was de-signed safely, utilizing state of the art technology and in such a way that if used properly, presented no danger or risk of harm to the end user? Or is the case about the plaintiff ’s misuse and abuse of the widget? Is it about irresponsibility? Is your case about the plaintiff who walked into your store, was not paying attention to where he was going and slipped and fell on water? Or is your case about individual responsibility and being careful? Is your case about the plaintiff who invested $200,000 in the defendants’ real estate investment based on the promise of huge returns, only to find that the defendants misused the money and used it for their own benefit? Or is your case about greed? The jury should know and understand your theme from the outset of the case. As the jurors hear the evidence, they will be thinking about how it fits into the theme of your case. They will be invested, interested, attached, and emotional. Throughout the trial, they become your jury, not “the jury” but “your jury” because they are think-ing about the theme of your case.

sOMe COMMON tHeMes • There are a number of tried-and-true plaintiffs’ and defense themes that may be useful depending on the facts of your case. These themes will not work in all cases as a good, effective theme is born from the facts of the case. It is important to keep in mind that while you should start thinking about the theme of your

Case Themes | 41

case from the outset of the litigation, the theme, like your overall strategy, may change and develop as your case progresses.

responsibility/Accountability Responsibility and accountability are common themes used by both plaintiffs’ and defense law-yers. Much of the appeal of these themes comes from the fact that they are easily relatable to jurors. Everyone has dealt with issues of either taking re-sponsibility for their own actions, or in which oth-ers were unwilling to act responsibly and accept the consequences of their own actions. Recently, I was talking to my neighbor, a counselor at a nearby high school, and she was recounting her experience in dealing with pre-registration for the middle school students who would be attending her high school in the upcoming academic year. Despite over 25 years of experience, she was astounded at the number of parents she encountered during the information session who did not want to decide which courses their children should take during their freshman year of high school. Rather, they wanted her to make that choice for them. As she continued to tell her story, it was clear she was getting more and more emotional. When I asked her why the parents wanted her to make the choice, she exclaimed quite loudly, “They don’t want to be responsible for their own children’s education. If something does not go as planned, they [the parents] can blame me for making the wrong choice for their kids.” Her whole story revolved around a simple theme: responsibil-ity and accountability. Undoubtedly, everyone re-lates to it. Everyone has experienced it. It brings out emotions. It can be outcome-determinative. Responsibility and accountability as trial themes can be articulated and applied in a number of ways. For example, in products liability cases, it may be the job of the plaintiff ’s counsel to con-vince the jury that the defendant chose to put an unsafe, dangerous product on the market, and that there was nothing the plaintiff could have done to

prevent her injuries as she simply used the product, unaware of the dangers that lurked. Who should be held accountable and responsible for the inju-ries she had to suffer through because of the defen-dant’s product? The defendant made the product as it did, and it should be held accountable for its actions. Likewise, in premises liability cases, the plain-tiff ’s counsel may argue that the defendant created a dangerous situation or an unsafe environment for the unknowing, unwitting public. The defendant’s facility was so unsafe that it was nothing more than an accident waiting to happen—and the accident finally happened to the plaintiff. The defendant should be held responsible for creating the hazard and subjecting the plaintiff to it. These same themes, however, can be used just as effectively by defense attorneys, as the illustra-tion with the school counselor demonstrates. Par-ticularly in the current environment, the public, and therefore jurors, seems to be growing more and more weary of constantly hearing individuals blame others for their woes. It is important for de-fense counsel to seize upon this sentiment and take advantage of the fact that society does not tend to empathize with plaintiffs who try and blame defen-dants, whether an individual or corporation, for their injuries, when the facts are that the plaintiff herself was not paying attention to what she was doing, or she was not being cautious and looking where she was going, or she was not doing what she should have been doing. In a word, where the plaintiff was acting…irresponsibly. Thus, in the premises liability case, for exam-ple, it was the plaintiff who simply did not bother to look in front of her and pay attention to where she was going when she tripped on the box that was in plain view and obvious to anyone who was looking where he or she was going. It was she, and not the defendant, who chose to act irresponsibly. Although it is easier for her to blame the defendant,