Develop your case theme

Constructing a compelling case theme can be a challenge. Jury consultants urge lawyers to choose a theme that is the unifying image, idea, or concept that jurors will use as a reminder of what the story is all about.

But this can be a complicated task when you consider that a jury is not an audience of 12, but rather 12 different audiences.

An effective theme helps each juror select relevant facts, organize information, and make judgments about the case. A good case theme is

easy to remember
useful in deliberations
supported by the evidence
consistent with the juror’s concept of fairness and justice
successful at triggering subconscious judgments of cause and effect.

Many attorneys develop their theme as a commonsense principle that compels assent early in the opening statement. Once you have introduced the theme, anchor it. Employ the same tone of voice and cadence every time you mention the case theme. This anchors the theme vocally. Your theme also becomes physically anchored in the listener’s subconscious mind if you use the same gestures, stand in the same spot, or perform some distinctive motion when you discuss it.

Jim M. Perdue Sr.
Houston

Exhaust the witness’s knowledge

How often have you reviewed deposition transcripts and discovered holes—portions of the testimony in which you did not explore a question in enough detail to predict what that witness will say at trial? Improve your examination skills by following these three steps.

First, ask witnesses open-ended questions. Closed-ended questions allow witnesses to limit their answers, preventing you from learning all the facts they know or can recollect.

Next, ask witnesses plenty of follow-up questions like these:

What else?
Did anything else happen?
Was anything else said?
Did you observe anything else?
Do you remember anything else?
Are you sure that’s all you remember/saw/heard?
Have you told me everything?

Finally, don’t allow the witness’s answer to dictate the next topic until you have completely exhausted the subject at hand. Some witnesses will try to control the direction of a deposition by intentionally mentioning facts or opinions that may get you “off the scent” of the information you’re pursuing.

Keeping control of the deposition process demands self-discipline. Stay focused to make sure you extract all of a witness’s knowledge on a topic.

Thomas J. Vesper
Atlantic City, New Jersey

Mark R. Kosieradzki
Plymouth, Minnesota

Tap into jurors’ senses

Jurors will not relate to the intangible noneconomic harms that our clients suffer unless they are compelled to “see” and “feel” them. If they do not relate, they will not compensate. Jurors tend to believe what they see, hear, taste, touch, and smell, so appeal to their senses—even, or especially, when describing something abstract.

Prepare your witnesses to describe what observations led them to believe the plaintiff or decedent was suffering or in pain. If they describe what they saw, smelled, heard, and touched using concrete, sensory details, they won’t have to tell the jury that the plaintiff or decedent was in pain—jurors will reach that conclusion on their own. And vivid descriptions of firsthand observations rarely elicit objections at trial.

Photographs of injuries can be effective, but sometimes we rely too heavily on them. We blow them up and show them to the jury repeatedly. After the initial emotional impact fades, the photographs lose power.

Don’t just show a witness a photograph and ask him or her if it accurately depicts your client’s injury. Instead, start at the beginning of the story: Elicit a complete depiction of the incident scene that ends with a detailed description of the injury or harm. Then show your witness the photograph. If the narrative has been accurate, specific, concrete, and sensory, the photograph will be a visual manifestation of the description. Jurors will find the witness even more credible and interesting.

Sylvester James Jr.
Kansas City, Missouri

Diminish defenses on preexisting conditions

Obtain a client’s complete medical history early in the case so you can anticipate defenses related to preexisting conditions. The defense often claims that symptoms of a preexisting condition cannot be distinguished from those of the injury that the defendant’s behavior caused.

Combat this defense during voir dire by securing a commitment from jurors that they will not assess damages based on preexisting conditions. Use your client’s testimony and that of his or her physicians to identify which symptoms are associated with which conditions.

When appropriate, ask the treating physicians to explain how the injuries that the defendant caused may have worsened your client’s conditions. In many jurisdictions, you can ask for an instruction on the “thin skull doctrine,” which states that a jury cannot lessen a damages award because a plaintiff’s physical frailty made him or her susceptible to injury. The doctrine applies even if the defendant could not foresee that the plaintiff’s frailty would worsen the injury.

Timothy A. Rowe
Indianapolis

Send your comments and questions about the online version of TRIAL to us at trial@justice.org

Good counsel June 2007 | Volume 43, Issue 6

Develop your case theme

Exhaust the witness’s knowledge

Tap into jurors’ senses

Diminish defenses on preexisting conditions

Good counsel
June 2007 | Volume 43, Issue 6