chevron-down Created with Sketch Beta.

Litigation Journal

Fall 2020: Standards

The Only Way to Win

Faith E. Gay and Mary Joy Odom


  • Your themes, the backbone of your case, should be repeatedly voiced and displayed through trial.
  • To decide the case, the fact finder will go looking for the evidence that is consistent with those themes.
  • That is why building your case around the bedrock of your themes and the legal imperatives is critical.
The Only Way to Win
Westend61 via Getty Images

Jump to:

The start of any case—particularly a complex one—can be overwhelming. You may find yourself dealing with multiple claims and defenses, hundreds of thousands of documents, dozens of witnesses, and a complicated set of facts. You will be tempted to triage—addressing only the emergency on your desk. But working this way leads to ballooning costs and often results in disaster.

How do you rise above the fray of everyday litigation and turn your mess of a case into a coherent, winning story for your judge or jury? Especially in these days of extreme economic pressure, how do you win your case without blowing your budget? Where do you begin?

Begin at the End

At the end. From the first moment you begin work on your case, identify precisely what you need to win summary judgment or trial, and never, ever take your eyes off the prize. Your client will have improved confidence and smaller bills, and you will be a master of the facts and strategy—well positioned to force an early and favorable resolution.

From the day a case begins, imagine standing in front of a judge or jury, explaining why the facts and law require a win for your client. To do that, you will need to be completely conversant with the facts in your case, understand the applicable law, and build a record that guarantees success. Never forget that the attorney who tells the most compelling story wins. Of course, that is easier said than done. But with a solid plan that accounts for your eventual turn at trial, you will be on your way.

Whether you are filing a complaint or answering one, make the time early on to write down the elements of each claim or defense and confirm who has the burden of proof and the standard of proof that applies. Once you have a legal framework for your case, you have a means to organize your facts and build a winning story. Think critically about what bad facts you have, or which may develop, and consider now how you will deal with them. Weigh what importance those facts will have depending on your choice of jurisdiction or your choice of bench or jury trial. Factor in how an appellate court will think about the legal issues in your case and identify all areas where legal issues might be decided in more than one way so that you can be prepared for all scenarios.

Even if this exercise seems hopelessly difficult or incomplete at the outset, it will force you to be disciplined about what really matters to your case. No matter how complex the underlying problem, whether you win or lose will turn on a handful of key issues. If you identify those key areas early, you improve your odds of winning the case.

Once you have a legal framework in place, you must return to it in real time with unflagging discipline to include the evidence that emerges through discovery. By the time you get to trial, you will have a master document that helps you understand where everything fits—and what needs to be left on the cutting-room floor.

Spending time early on creating a framework for your case helps you identify what components a winning story must have. A story gives a case life, and without one, you will lose. It must be persuasive and easy to follow, and it must have moral force—regardless of whether you are trying your case before a judge or a jury. But a story without a theme is just talk. Case themes will be the linchpin of your case. Case themes are topical statements that encapsulate your story and evidence, grounded in what the law is. Your themes must harmonize with the law, the facts, the witnesses, the parties, the fact finder, and you. You and your team will present the themes in a myriad of ways throughout the case, so you must find them compelling, first and foremost. The themes must work with every bit of evidence and every witness, and resonate with the fact finder. If they do not, you will lose credibility. To road test your themes, try explaining them to someone who is unfamiliar with the subject matter of the case and has a limited attention span. Break the dispute down into plain English and convey it concisely with a bit of dramatic flair.

Case Themes

Case themes should also resonate emotionally and psychologically. Make the themes consistent with common human experiences and knowledge. Always appeal to a sense of fairness, personal responsibility, and hard work. Your themes, and the modesty and clarity with which they are conveyed, should make the fact finder want to agree with (and rule for) your client.

Consider one overarching theme, with a few supporting subthemes. For example, “Widgetopia is desperate to drive my client, DreamWidget, out of business” may be your broad theme. A supporting subtheme might be this: “Before it began using litigation as an anticompetitive weapon, Widgetopia tried other terrible things to push DreamWidget out of the market, like flooding Yelp with fake negative reviews.” Your themes can still be powerful and easily retained if they don’t have that catchy, classic feel like “This is a case about David versus Goliath.” The key is to come up with something that makes good sense for your case and that you can use to get a fact finder excited about your side of the story.

Your case themes will lead you to a story that is coherent, consistent, and persuasive. Incorporate the themes you have created by writing a short narrative of the facts in your case using the spin of the themes. Do they help you tell the story more effectively? If not, go back to the drawing board.

Improved trial team unity is an important bonus of early case theme and narrative development. Particularly in sprawling or fast-moving cases, it can be difficult to stay aligned on substantive approaches. A single set of themes puts down a marker for everyone to work from in briefing, witness preparation, or document discovery. As you progress through a case, you can also develop a set of themes you see your opponent living out. This can help you better anticipate your opponent’s attacks.

Much of what we do as lawyers revolves around the written word. It can be easy to forget there is another compelling—if more difficult—source of information: witnesses. Engaging your witnesses early will change the trajectory of your case for the better. Witnesses accelerate your understanding of the facts—they know where the bodies are buried. It is important to conduct fact interviews early and to develop a personal rapport with witnesses that encourages candor.

Witnesses can identify other important witnesses or factual areas you may not have known about or been focused on. They can help you find the strengths and weaknesses in your facts, as well as help you hone your case strategy and themes. One of the worst mistakes trial lawyers can make is assuming they know what witnesses will say.

Do not forget about former employees or third-party witnesses. Assume your opponent will reach out to any witnesses it can and try to make friends. You want to get there first and set up a beachhead. But exercise caution when communicating with witnesses you do not represent. They have no obligation to protect any thematic or strategic information you may share.


When you are seeking documents or considering what documents to agree to produce, consult your case outline. Do not fight about things that are clearly irrelevant. There will always be discovery disputes you cannot prevent, but a thoughtful approach to discovery will help you efficiently get what you need and produce what you must. There is nothing that judges hate more than thoughtless, overbroad, kitchen-sink discovery requests. And your client will hate them, too. They cost a fortune and demonstrate that you have not done early homework to develop case themes and understand the legal framework.

Draft disciplined, targeted discovery requests in consultation with your case outline and case themes. If you cannot picture how you would articulate relevance to your judge, think twice about whether it is a request you need. In addition to saving your time and your client’s money, there is another benefit of approaching discovery this way. When the discovery spats arrive and you have been disciplined while your opponent has asked for the world, you convince the judge of your competence. Discovery fights make everyone—including judges—reach for their Advil (or something stronger), so being thoughtful and reasonable will earn you not only early credibility but also undying gratitude.

Your case outline and themes will also help you identify what you may need to produce to support your own affirmative case. Often litigators become so focused on resisting production that they overlook material they need for their own case in chief. The other side’s discovery requests do not always ask for everything you might need—but there is no rule that says you must produce only what the other side asked for. And if you do not produce something you later (want to) rely on at trial, your opponent will cry foul—and the court may agree. Let your case outline help you be proactive and thorough about your record.

Teach yourself to break free of a loathing for document review. It is an opportunity, not a curse. The documents are full of hidden opportunities. To win your case, you must be their master! If you know the documents, you have a strategic advantage every moment you are in court. Knowledge of the evidence also yields you power on your trial team. Everyone will depend on you, and your role in the case will grow. With it will come the stand-up opportunities litigators crave.

On large document reviews, you will need to work with a team of other attorneys. Your case outline and narratives will be critical to finding the needles in the haystack. Clearly define what kinds of documents are significant, and give your team examples. Share important documents with your case team as they are being identified so that the whole team stays current, invested, and interested.

Adapt your case themes and narrative to the evidence you find during your document reviews. Perhaps the documents affirm what your witnesses told you—but perhaps they do not. When things don’t line up, take the time to reconcile and adjust in real time. Otherwise, you are wasting the client’s money and putting your case in grave danger.

Capture the detailed knowledge you glean from your documents by creating narrative inserts for your case outline on key factual points. These inserts preserve your detailed knowledge, help you gain depth over your opponent, and spot discord with your theory and themes. They will also be a vital resource during summary judgment and trial.


Depositions are a treasure trove of information. You hear what your opponents believe is important through their questions; and through the process of preparing your own witnesses, you typically learn much about your own case as well. But litigators who see depositions as merely trial dress rehearsal, rather than a final performance, should consider another profession. Whether you are taking or defending, an effective deposition requires mastery of the facts and a thoughtful plan for the witness. Bear in mind that it can sometimes take years to get to trial, and the passage of time can ravage a case. Witnesses on both sides can disappear or move on, forget important things, refuse to come to trial, change their minds, switch sides, or die. Depositions are your chance to lock in their story and get to the bottom of facts that the documents may not clearly show.

Have the worst-case scenario in mind when preparing for a deposition. If this is your only crack at a witness, what do you need to do with her? What documents do you need to ask her about? It is rarely the right move to save a “gotcha” for trial. Depositions are your chance to create crystal-clear testimony that persuades the trier of fact. They are your one best opportunity to “close out” the witness. Bear in mind that you need to control an adverse witness at trial, and successful deposition testimony is the most effective way to do that. You should create a deposition record that leaves the witness no wiggle room. This requires intensive, highly specific preparation, not just a hastily prepared set of questions. And, of course, you do not want to be preparing a cross-examination for trial and realize that the answer to a critical question is a mystery altogether.

Remember the rules of evidence in depositions. Litigators often start thinking seriously about evidence only once they are at the summary judgment and trial phases. But you can avoid headaches at trial by thinking about the admissibility of documents and asking necessary foundational questions during the deposition. Remember applicable hearsay exclusions and exceptions, and ask the questions that will help you determine if one applies. And listen to your opponent’s objections: Sometimes they provide clues to foundation corrections that can circumvent issues at trial. You do not need to engage with every objection, but make informed choices by knowing the rules of your district and your judge.

With all witnesses, be sure to carefully consult your case outline, themes, and narrative as you outline your deposition strategy. Do not end the deposition until you establish the propositions you need—even if it takes all day.

Your case outline, themes, and narrative are equally critical when it comes to preparing your own witnesses to be deposed. Do not simply “walk the witness down memory lane”; use your time with the witness to educate her on the big picture. Your witnesses—unless hostile—need to understand how they fit in and why their testimony matters. Your case themes are an anchor for your witnesses. When your witnesses have themes to cling to, it makes them feel more assured and allows them to successfully parry unexpected lines of questioning.

Bear in mind that the first defensive deposition is often a crucial opportunity for insight into your opponent’s case. This is a chance for early assessment of the vulnerabilities in your own strategy and case themes and a chance to inoculate against them.

Finally, do not forget about what you need for your own case while defending depositions. Consider whether your witness adds unique and necessary information to the picture—particularly if she may not come to trial. You may need to prepare a “redirect” examination for that witness, which you can deliver once your opponent has finished questioning the witness. Of course, this comes with risk: Your “redirect” may reveal your strategy and may expose your witness to additional hostile questioning. But by using your case outline, themes, and narrative, rather than freelancing, you can make an informed choice about whether to take that risk.


If your case involves complex or technical issues, you may need to retain experts to help analyze and explain those issues. In some cases, the need for expert testimony will be clear and the decision to retain experts will be easy. But in the closer case, your case outline and themes will be valuable to you in considering whether expert testimony is required to prove an element of your case—or would be desirable even if not strictly necessary. Expert costs can be among the highest a client will face during litigation, and sometimes the costs are not justified by the benefits. Consult the legal framework laid out in your case outline. Do any of the elements of your case present special difficulty that an expert could resolve? Look at your case themes. Would any of them be better advanced through expert testimony? For example, if one of your case themes is that your client company acted no differently than another company would have, perhaps it’s time to consider whether an industry expert could be helpful.

Regardless of whether you need a testifying expert, it can be helpful to work with a consulting expert. Consulting experts augment the legal team, and their work is generally shielded as work product. They can help you work through difficult points and provide a sounding board. They can help vet testifying expert candidates, and they can even Daubert-proof the testifying expert’s work.

If you decide to bring in an expert of any kind, check the rules, check the rules, check the rules! What is discoverable can vary with jurisdiction. And in any jurisdiction, you will want to draw clear lines between testifying and consulting experts to avoid contaminating your testifying expert with information or theories you may not want discovered.

The Trial

Organization is key to a successful trial effort. Only a fraction of the material that has come out in discovery will be presented at trial. You must present the most streamlined case possible. Even if your judge does not set time limits, it is in your interest to present a clean, concise case.

The case outline, themes, and narrative you have been building are essential to this effort. These documents are the key to the case you must present at trial, and you can parlay them into the order of proof. By the time you reach trial, your case outline should be a virtual findings of fact and conclusions of law. It now has all the legal elements of your case, with the facts that have come out in discovery around each element. And your case themes and narrative distill the story and gist of your case. These documents will feed into your trial road map: the order of proof. An order of proof should identify trial witnesses (whether they are being presented live or by deposition designation), the order in which they will appear, how long they will testify on direct, and the anticipated testimony from each witness. The order of proof should also identify evidence that will come in through stipulation, through judicial notice, or by deposition designation. Do not assume that your opponent will draw out any of the information that you need.

Your order of proof goes hand-in-glove with your trial exhibit list. Do not shovel every document in the case onto your list; a wildly overinclusive exhibit list can land you in hot water with your opponent and the court. Think through not only what you will use with your own witnesses on direct and adverse witnesses on cross, but also what you may want to save for use with your witnesses on redirect. Assume the story at trial may expand or shift in ways you do not anticipate. Your opponent will be telling a story at trial that is likely very different from yours—and the court may have concerns that neither you nor your opponent have focused on. Though targeted, your exhibit list should be broad enough to allow you to be nimble, given that you cannot always amend it mid-trial.

The organizational documents you have created are essential source material as you draft your witness examinations. Before you meet with your witnesses to prepare them for their trial testimony, carefully draft direct examination outlines. Check the witness outlines against the case outline, order of proof, and case themes to confirm they cover all the material you need.

Your opening statement and closing argument give life to the hard work you have put into approaching trial with a well-organized plan. These arguments are the chance to tell the story you have been building from the start. What can feel like a herculean task will be made easier by having such rigorously prepared, thoughtful documents organizing your entire case. You will not have to cast about for what the facts are or for what you need to show at trial; it will already be at your fingertips in your case outline, themes, and narrative. You can use these materials to prepare a thorough opening statement that hits the right themes in telling the story you have been building for months. Your early work will keep your statement tailored and help you avoid making promises in your opening that you cannot keep.

Pay attention to what your judge is saying during the trial, and consider how it affects your evidence and theme presentation. Be nimble, and take these issues into account. Rote adherence to pretrial plans can undermine your credibility with the court—and stymie your ability to respond to and resolve unexpected questions from the court. Keeping your case plan and strategy firmly in mind, pivot to address the court’s concerns while making sure your answers support the key themes of your case.

Your themes, the backbone of your case, should be repeatedly voiced and displayed through trial. Whether you are trying a case before a judge or jury, your case themes help your story lodge itself in the fact finder’s mind. When it comes time to decide the case, the fact finder will go looking for the evidence that is consistent with those themes. That is why building your case around the bedrock of your themes and the legal imperatives is so critical: It is so that at trial, you can bring it all together through your evidence, witnesses, and argument in a way that makes sense, feels right, and leads to victory.