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April 29, 2019 Practice Points

Winning with Theme

Having a concise, persuasive, and logical theme and theory of your case is more than a snappy catch phrase—it is a tool that helps focus and filter information.

By Donald R. Pocock

A litigator’s core responsibility is to persuade a fact finder to render a determination in favor of his or her client. Unfortunately, this is not a scientific process. No trial or motion hearing comes with a recipe whereby if you add a bit of this and a bit of that, out pops a fully baked cake that grants your every wish and desire. In conflict, there are competing sides, and the fact finder must listen to both. Whether it’s a jury or a judge that is hearing the matter, they need you, the lawyer, to help them understand, digest, and feel confident in their decision.

Having a concise, persuasive, and logical theme and theory of your case is more than a snappy catch phrase—it is a tool that helps focus and filter information. Telling a court “this case is about a foreclosure” may orient them to the facts and the situation, but telling the court “promises must be honored and broken promises hurt everyone” sets a tone, conveys a message, and informs the fact finder.

Theme and theory are not mere law-school constructs. Lawyers must remember that when advocating, they are using oral argument to inform and persuade. Modern society is more visual than it is auditory. We focus on our phones, tablets, and TV sets. We view images that tell us what is happening. At trial, however, visual aids are limited. Most information is elicited in oral form. Hearing, digesting, and remembering large volumes of information through listening is not a skill that most people use daily. A good theme is a tool for the listener. It helps focus information, to discern what is important from what is not. It helps focus attention. It provides a milepost by which other information is measured and related. Done well, an effective theme is a line that jurors will repeat in deliberation, while they are trying to persuade others to vote with them.

Good themes are not mere impact statements during opening or zinger lines in close. Good themes are used to frame each witness examination, each evidentiary argument, and each phase of the advocacy process. Good themes are used in pretrial motions, discovery disputes, and even deposition. Litigation is not a process of “collect and repeat.” Litigation is an active process for advancing your client’s cause in the way most favorable to him or her. To do that, the information must be organized and focused before it can persuade.

All of this is not to say that a theme of the case is immutable. Cases change and evolve as information is discovered and understood. The sign of a good theme, however, is that it helps predict where the facts do not exist. A good theme helps explain the gaps in proof that are subject to either advocate’s point of view. We may not precisely know what happened at a specific point in time, but if we have a coherent, logical theory of the case, we can help predict with credibility what did.

Effective advocates must think thematically in addition to factually to accomplish their goal, which is the best possible outcome for the client. Ineffective advocacy lacks organization, lacks focus, and most of all, lacks punch. Establishing a theme and theory of the case is a strategic choice that demonstrates the advocate is actively engaged with the facts. You can present a case without a theme, but you won’t be presenting it as clearly, easily, or as effectively as you could.

Donald R. Pocock is a partner with Nelson Mullins Riley & Scarborough LLP in Winston-Salem, North Carolina.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).