Civil Litigation Criminal Law Legal Topics Litigation Strategy New Lawyers

Find a Theme to Guide the Jury

court_78468376Trials are stressful, fact-filled, and laced with legal issues. Don’t become so obsessed with detail that you miss the essential case. You should be able to pick out two or three major themes that you can use to guide the jury’s thinking.

Typical case themes include:

  • Plaintiff is greedy and a teller of tall tales.
  • Defendant is a heartless corporation with no regard for human values.
  • The opposing party is relying on a mass of virtually incomprehensible technicalities.
  • The client is a nice person who could not have done the things charged.
  • Defendant has done so many bad things that she must have committed the crime charged.
  • We harmed the defendant, but she is exaggerating her injuries beyond credibility.
  • The other side is dishonorable and lying.
  • A deal is a deal.
  • The facts of this case are too confusing to justify finding for plaintiff.
  • Technically plaintiff may be right, but it would be terribly unfair to give them what they ask for.
  • The victim deserved it.
  • They were out to get us for improper reasons.
  • Anyone could make this kind of mistake.
One or more of these themes adequately describes most cases, however complex. Some of the themes, strictly speaking, are irrelevant, e.g.: “Technically they may be right, but it would not be fair to give them what they ask for.” Those themes must be presented ethically, between the lines.

As with everything else with a trial, the key is to stay flexible; don’t be wedded to any particular theme. If a theory of the case develops obvious weaknesses, abandon it. Conversely, if potential new theories arise during trial, recognize and develop them.

For example, in a first-degree murder case, self-defense was the defendant’s initial theory. During the trial, a prosecution toxicologist testified about the probable effects of the victim’s ingestion of barbiturates on his behavior just before death. Because it had been proven that the defendant had also taken large quantities of barbiturates before the murder, defense counsel made the toxicologist his own witness, and established the factual basis for a verdict of voluntary manslaughter, based on diminished capacity.

In another criminal case, the defendant postal carrier was charged with stealing money from letters, while he sorted them. Three postal officers testified that they observed him through binoculars. After the first case resulted in a hung jury, the prosecution built a scale model of the entire post office, including the vantage points for the postal inspectors. During the lunch break of the second trial, defense counsel worked with the model and discovered that one could not even see the desk where the defendant had sorted his mail from the supposed vantage point. The theme changed from “they were out to get us” (because of defendant’s union activities), to “they are lying.”

Repetition is key. If you can parade your themes in front of the jury every day of the trial, they’ll weigh more heavily in the scales than the background noise of unfavorable details.

Want to learn more helpful trial strategies and tactics? Turn to CEB’s Effective Direct and Cross-Examination, chap 1.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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