A consistent, unified, and cohesive theme allows you to take the theory of your case and make it easy to understand and remember. The perfect theme is one that you will introduce in opening, reinforce through direct and cross-examination, and then tie together in closing.
In 1994, after having been a practicing lawyer for 13 years, I returned to law school to take the first ever Master’s in Trial Advocacy at the Beasley Temple University School of Law. The first thing we did was try a case in the morning. In the afternoon, we watched our instructors try that same case. I had given the opening for the plaintiffs in the morning. I then watched as my instructor, Herb Kolsby, gave the opening for the plaintiffs in that same case in the afternoon using a unified case theme that brilliantly synthesized plaintiffs theory. It was there and then that I learned how using themes can be a devastatingly effective trial advocacy tool. Herb and the late great Ed Ohlbaum were masters, at incorporating themes into directs, crosses, openings and closings.
As trial lawyers, we are storytellers. And in storytelling, the importance of theme cannot be underestimated. A consistent, unified, and cohesive theme allows you to take the theory of your case and make it easy to understand and remember. The perfect theme is one that you will introduce in opening, reinforce through direct and cross-examination, and then tie together in closing.
Here’s an example of using the theme of promises in the opening statement in a construction accident case.
This is a case about promises. The defendant, Bulldog Construction, the general contractor for the construction of the Wells Fargo Arena, entered into a contract with the owner. Bulldog promised to perform the work in compliance with the contract. The owner promised to pay them $63 million. Part of Bulldogs promise was to provide fall protection but the sad truth, in this case, is that not only did Bulldog not keep their promise they never intended to keep it in the first place. And because they failed to keep their promise and failed to provide fall protection, David Lewis, a union ironworker, fell 30 feet and was catastrophically injured.
David isn’t the only plaintiff in this case his wife Lori has a claim for how this accident has affected their relationship. This morning, Lori asked me if I knew what today is. I asked her what today was and she said it was their wedding anniversary. Twelve years ago today Lori walked down the aisle in a white dress, stood on an altar before her God, and made a promise—she promised to stick with David in sickness and in health till death do they part.
She kept her promise.
She sits in this courtroom on the day of her wedding anniversary because these defendants didn’t keep theirs.
After my opening the Judge had the jury take a break and waved the insurance adjuster and defense attorney into chambers. The case settled before the jury returned.
In that case, we were able to marry the theme of promises and liability theme of the promises in damages. We also did that in another case.
Kia was injured when she was struck by a van at the Philadelphia airport. Here’s a portion of my closing.
After Kia was struck and knocked 60 feet, as she lay crumbled on the asphalt, a nurse who was flying to Africa to HELP AIDS victims was the first person at her side. Kia looked up and said HELP. You heard from Dr. Roberts who operated to HELP put Kia’s bones, nerves and blood vessels back together. One of the major issues you need to decide is whether Kia requires a home health aide to HELP her in the activities of daily living. It is the difference of several million dollars. Dr. Roberts, the Doctor who has HELPED her since her injury told you that she needs that HELP. The defendants doctor they hired to examine her once says she doesn’t. You must decide who to trust, the doctor that HELPED her, or the doctor that didn’t.
When it comes to damages, along with her lost wages, past, and future, and medical bills past and future, you need to make an award for pain and suffering. Although it just says pain and suffering on the verdict sheet, it is actually made up of five factors and I thought of something to help all of us to remember those five factors.
The factors are:
Humiliation and embarrassment, loss of life’s pleasure, pain and suffering, and scarring and disfigurement.
The first letter of each factor spells HELPS.
I’ve been trying to HELP Kia for the last three years. As my closing ends, my time to HELP her is coming to an end.
Now, it’s your turn to HELP.
They came back with a verdict that HELPED her—a lot.
Sometimes a theme may come to you in the middle of a trial. I was trying the case of a 19-year-old who was killed in an auto accident. He was one of five children. I had his mom on the stand and had her describe life before the accident. One thing she talked about how the family always ate dinner together every night. Then she testified about the day of the accident and the funeral.
I then asked her about the family dinners since the funeral. She began to cry. Some of the jurors glanced up with their eyes, a body language clue that they were searching their visual memory. I told her that I remembered that when my family ate dinner, everyone sat in the same chairs every night. She looked up and said—What do you do, take the chair away and pretend like your child didn’t exist or have an empty chair at the dinner table every night and be reminded of the loss.
We have an empty chair.
We left an empty chair as the family sat together in the courtroom—a thematic, silent but compelling reminder of the ever present loss.
In another case, Kevin was injured when a railing at Veteran’s Stadium failed during the Army Navy game. After I told the Judge my demand, she said you have no wage loss, no medical bills and your client is making more than $100,000 a year. I said let me open.
On the wall of the bedroom where Kevin grew up were two things—a plaque that his grandfather gave him when he was ten years old that said West Point Graduate and a faded photo of his father, an Army Ranger who was killed in action. Kevin’s Dream was to graduate West Point and serve our country as an Army Ranger.
This is a case about a broken railing, a broken neck, and a broken dream. When the poorly designed, rusted out railing at Veteran Stadium failed during the Army-Navy game, Kevin fell and broke his neck. Luckily, he wasn’t paralyzed. The Army covered his medical bills. He recovered and went to try to live his dream and become an Army Ranger, but in boot camp, during a fighting exercise, he was hit in the neck and went down unable to move for a couple of minutes. He recovered quickly but told that he could put the whole platoon at risk and couldn’t be a Ranger. The broken railing that broke his neck had broken his dream.
This case is about the value of that dream. The defendants will tell you the value of serving our country is worthless—and that you shouldn’t award much for it. After Kevin was discharged he got a job on Wall Street and is making $150,000 a year rather than the $50,000 he would have made as an Army Ranger. So, we know, that to Kevin who had already chosen to forego Wall Street to serve our country, that the value of that dream was $100,000 a year—at a minimum.”
The case settled after that opening.
In a warnings case, we sued Simon, the manufacturer of a digger derrick. The product is similar to a crane but came without a hook. We argued that Simon should have warned to use a hook with a safety latch. In cross-examining the purchaser of the product, we used the Manual and all of the things that Simon told them to do. Within five questions we evolved from “the Simon Manual says” to the age-old children’s game “Simon says.”
We ended the examination with the witness stating that if Simon said to use a hook with a safety latch, he would have. We made Simon Says the centerpiece of a successful closing.
Themes are a great way to synthesize and effectively and forcefully communicate your themes. They can be used consistently for the whole case or just during a direct, cross, opening, or closing. I was fortunate to be taught how to value and construct themes. It’s helped me, and more importantly, has helped my clients.
Reprinted with permission from the “11/3/2020” edition of the “Legal Intelligencer”© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.