McElhaney on Litigation
The Big Idea
The Story of Your Case Is Stronger When It’s Built on a Compelling Theme
Posted Aug 11, 2006 6:52 PM CDT
By James W. McElhaney
Frank Logan was certain that the dispute over the sale of a private trash disposal company would have settled long ago. Which is why, when it didn’t, he found himself asking for Angus’ help just 12 weeks before trial.
“It’s been a while since I’ve tried a case,” Frank said, “but I figure it’s like riding a bicycle—you never forget how.” Angus didn’t respond to that, but Frank Logan is an old friend, and Angus agreed to listen to his opening statement on Saturday afternoon. I was there to run the video camera and take notes.
Although it was hard to follow in spots and cluttered with too many unconnected details, it wasn’t bad for a first effort. Frank got the basic facts across and avoided the usual self-inflicted wounds like “This is what we lawyers call an opening statement,” and “Nothing I say is evidence.”
So I was surprised and Frank was shocked when Angus asked, “OK, Mr. Logan, what’s the big idea?”
“You mean, ‘What the hell was I doing?’ ” Frank asked. “I was trying to give an opening statement!” Angus smiled. “Relax, Frank, I know that,” he said. “I’ve heard 57 minutes of intricate detail about contractual negotiations, economic analysis, failed expectations, growing disagreement and rancorous wrangling. While I’m still trying to piece some things together, I know that your client wants his $17 million back plus $6 million in damages.”
“Well, that’s the big idea,” Frank said. “He’s entitled to a $23 million verdict.”
“No,” said Angus. “The big idea is not the result you’re after. It’s not just the facts of the case. It’s not simply the sequence of events, or even a coherent story of what happened.
“The big idea is the theme of the case. It’s the central, unifying idea that convinces the judge and jury that this is what happened—and who is responsible for it—because their values and sense of plausibility says, ‘This is how the world works.’
“The theme—the big idea—shapes everything you do in a jury trial, from picking the jury to final argument. And in a judge trial, it covers how you try the case from pretrial motions to post-trial relief.”
“So what are you telling me?” Frank asked. “I should come up with some little theme I keep repeating throughout the case, like Beethoven’s famous first four notes from his Fifth Symphony—ta ta ta tah?”
Angus smiled. “You don’t know how close some lawyers have come to that idea—only they didn’t need to say it more than once or twice in the entire case.”
“Oh, come on,” Frank said.
A CHILDREN’S STORY
“I’m serious,” Angus said. “years ago, Mike Schmidt in Dallas started a contract case by telling the jury he took his 8-year-old son to school before coming to court that morning.
“His son asked him what kind of case he had. ‘I couldn’t go into all the technicalities of a business deal that went bad with Billy,’ Mike said, ‘so I just said, “This is a case about two men who each gave the other his word—and now one of them wants to break it.” ’
“Then in final argument, Mike said, ‘Folks, remember what I told my son Billy before this case started—that it was about two men who each gave the other his word and now one of them wants to break it? What I didn’t tell you was what Billy said then: “Daddy, can he do that?” and I said, “Son, that’s going to be up to the jury.” ’ ”
“That’s beautiful,” Frank said, “but somehow I don’t see myself telling the jury about taking my 42-year-old nuclear physicist daughter to work before trial.”
“Besides,” Angus said, “if you use the right theme to organize your case, the jury will learn your theme from how you tell the story.”
“You mean absorb the big idea by osmosis? Do you think that really works?” Frank asked.
Then I joined in. “That’s how Angus does all of his openings,” I said.
“But isn’t it more effective just to give them the big idea?” Frank asked.
“That’s the paradox of persuasion,” Angus said. “The more you tell people how to think, the less persuasive you are.”
“It’s the same with writing,” I said. “You’ve heard the advice that when you write you should ‘show, not tell’? When readers or jurors get the big idea from what happens in the story, then it’s their idea—something they participated in getting for themselves, instead of something you tried to shove down their throats.” Angus nodded. “And people like their own ideas,” he said.
“Sounds like powerful stuff,” Frank said.
“It is,” Angus said. “Why do you think all the great religious leaders have used stories—parables—to convey basic principles? Because stories reach deeper into people’s minds and hearts than just a set of rules.”
“That takes us back to Angus’ question,” I said. “What’s the big idea?”
“There’s more to it than just a broken promise,” Frank said. “There’s also industrial sabotage and economic treachery that almost ruined my client until the defendant’s plan began to crumble around the edges.”
“That’s what you want us to think after we’ve heard the story?” Angus asked.
“Right,” Frank said.
“So you’ve got three big ideas,” Angus said. “A broken promise, industrial sabotage and economic treachery. Is that it?”
“You’ve got it,” Frank said.
THREE PIECES, ONE CASE
“What’s the broken promise?” angus asked.
“My client, Mike Sanders, was running a small private trash removal service called Clean Corners on the northeast side of town. It did well and got a big write-up in the papers and local TV coverage as a new small business that made good.
“Shortly after that, his only real competitor, Jack Birnam, offered to sell Mike his trash collection company—Clean Sweep—for $17 million, saying he had decided to retire. Part of the deal was that Birnam agreed not to compete with Mike on the northeast side of town for three years.
“But within 90 days after the sale, Birnam’s brother-in-law, Billy Dunsinane—armed with a $12 million loan from Birnam—started another trash collection company on the northeast side, Reliable Trash Removal.
“Then, when Mike Sanders called Birnam to complain about the new competition, Birnam offered to buy back Clean Sweep for $5 million!” Frank said.
“Butter doesn’t melt in his mouth, does it?” Angus said. “Now tell us about the industrial sabotage.”
“As soon as Mike turned down Birnam’s offer to buy back Clean Sweep, things started happening to Mike’s trucks. Brake lines were cut.
Pancake syrup was poured in the fuel tanks. Hydraulic lines that controlled the trash lifters were disconnected.
“But with the aid of a private detective, Mike found out the sabotage was being done by Mark Caulder, who used to work as a driver for Jack Birnam. Caulder admitted to the detective that he was paid by Birnam to sabotage the trucks, but since then he’s disappeared from town.”
“And the economic treachery?” Angus asked.
“The Warrington landfill is absolutely essential to Mike’s trash disposal business,” Frank said. “Without it, the cost per cubic yard of trash—not to mention the time and fuel required to get it to an alternative site, as well as the increased licensing fees—would destroy his business.”
“So what’s going on with the Warrington landfill?” I said.
“Jack Birnam’s brother, Woody, is on the Warrington City Council, and in the past six months Woody has started a big campaign to cover up the old landfill, sell part of the land for development, and put tennis courts and a city park on the rest of it,” Frank said.
“Any evidence to connect this recent development with Jack Birnam—other than the timing?” Angus asked.
“One thing,” Frank said. “During the initial negotiations for the purchase of Jack Birnam’s Clean Sweep company, Mike Sanders said he was concerned about having a reliable landfill to take all the additional trash he would be collecting. Then he got a nice little handwritten note from Jack Birnam saying the availability of the landfill would not be a problem as long as Woody Birnam was on the Warrington City Council.”
“You have the letter?” I asked.
“Of course,” Frank said. “Oh, and one other thing I almost forgot to mention. When Mike Sanders’ first trash collection business got the coverage in the papers and on the evening news, Jack Birnam was furious for a whole week. His former secretary, Lotta Beekers, told me he came into the office the next morning yelling and screaming about how he was going to make Mike Sanders pay for muscling in on the business he had taken 10 years to develop.”
“You going to call her as a witness?” I asked.
“I don’t see why not,” Frank said.
Angus looked thoughtful.
“What are you thinking?” I asked.
“I was just wondering if Frank ought to save Jack Birnam’s outburst for the end of his opening. As an afterthought—just the way he did with us,” Angus said.
“Me, too,” I said. “It turned three separate pieces into a single case.”
“With one powerful theme,” Angus said.
James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.