McElhaney on Litigation

Themes That Strike a Chord

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Last Friday afternoon, a group of us were in the Brief Bag, talking about the biggest case to hit town in years: the Fast-n-Tite fraud trial. None of us were im­pressed by the opening statements from the two heavy hitters trying the case.

“The problem was poor organization,” said Flash Magruder, the plaintiffs personal injury lawyer. “And good organization is essential to an effective opening.”

“For once Flash is right,” said Dick Mudger, who does insurance defense work. “And the best way to organize an opening statement is to follow the elements of your cause of action or defense. It guarantees you won’t leave out anything essential. And besides, when the judge gives final instructions at the end of the trial, they will subtly remind the jury of your opening giving the impression that the judge agrees with you.”

“Bishwah!” said Flash. “Where did you get that? From the Holy Grail Insurance Co.’s monthly newsletter? Do you really think the jury will remember how you organized your opening statement by the end of the trial?”

“Give him a break,” said Myra Hebert, the local bar politician. “I organize every part of every trial around the list of elements and defenses from the bar association’s annual guide to forms and pleadings. Originality and creativity are the surest roads to getting sued by your client for malpractice.

“‘Never do anything unusual’ is my motto.”

Mike Torrent rolled his eyes and Barbara Swanson covered her face, but nobody took Myra on. We’re used to her pronouncements.

“I don’t think either opening had a big organizational problem or was that hard to follow,” said Beth Golden. “But on the other hand, I didn’t think either one was at all persuasive.

“The plaintiffs lawyer was as sincere as a TV huckster selling costume jewelry or jar and bottle cutters. And the defense counsel was as biting and sarcastic as that demented lawyer in Chicago Law Dogs.”

“Neither of them won my confidence,” said Sandy Ramirez. “But besides the qualities that create trust, something else was missing. It was like both of them told hollow stories. Lots of facts, plenty of arguments, but no big ideas. Nothing to tie their cases together.”

Angus smiled. “What a beautiful observation,” he said. “A hollow story is just a pile of facts–not a real story.”

Sandy nodded in agreement.

“So neither of those heavy hitters had a theme–a big idea?” said Mike Torrent. “Not that I heard,” said Angus.

Play It Again

“If you had to come up with a theme for the plaintiff in the Fast-n-Tite case, what would it be?” said Sandy.

“Good question,” said Angus. “For an idea to be a good theme in a trial, it has to keep coming back throughout the case.”

“I can see why a good theme has to be a big idea that makes sense,” said Mike, “but why does it have to keep resurfacing? Is that an idea that comes from the Bellman in Lewis Carroll’s The Hunting of the Snark–‘What I tell you three times is true’?”

“It’s not because it’s said three times, but because it’s true three times that makes it valuable,” Angus said. “Every time the big idea comes back during the trial, it gets tested again by the jury. It’s a natural reaction. They can’t help it.”

“And if it passes the test?” said Sandy.

“Then the theme becomes more valid–and so does the whole case,” said Angus. “Wow,” said Barbara Swanson. “Simple, but it makes a lot of sense. So if you want to win, keep hitting the big idea in your opening statement and push it all the way through the trial.”

Angus shook his head. “That would be like a conductor who was leading an orchestra in Beethoven’s Fifth continuously turning and saying to the audience, ‘Here come those four notes again.’ You want the theme to keep coming back, but you want the jurors to get it on their own–so it’s their idea, not yours.”

Then Sandy Ramirez said, “So let me ask my question again. If you had to come up with a theme for the plaintiff in the Fast-n-Tite case, what would it be?”

“Probably something very simple,” said Angus. “Like a series of three questions focusing on Fast-n-Tite’s economic problems before it suddenly imploded: What did they know? What did they say? What did they do?”

“And these questions keep resurfacing through the plaintiff’s case?” said Sandy. “Yes,” said Angus, “especially because, while the questions stay the same, the answers keep getting more damaging as the trial goes on.”

“Would the same questions apply to the CEO of Fast-n-Tite–Lamont ‘Cranston’?” said Mike Torrent. “What did he know? What did he say? What did he do?” “Don’t you mean Lamont Reynolds?” said Barbara Swanson. “He was the CEO of Fast-n-Tite who got away with $14 billion.”

“Yeah, but all the blogs call him Lamont Cranston,” said Mike, “because he has ‘the power to cloud men’s minds,’ like the Shadow on the old radio show.”

“Would you try to get that Shadow line in front of the jury?” said Flash Magruder. “I would.”

“I doubt that you’d get the chance,” said Dick Mudger. “The defense would be fools not to kill that with their first pretrial motion in limine.”

“This is wonderful,” said Sandy. “With this theme, by the end of the trial the jurors are going to think, ‘This is what the defendants are like. They manipu­lated the entire crash of their own company to escape with billions of other people’s dollars.’ And it’s the jury’s idea.”

Help the Jury Figure Things Out

“But don’t count on one theme to do all the work,” said Angus. “There are other techniques that get the fact-finders to reach the conclusion you want almost on their own.”

“Like what?” said Myra Hebert.

“Like using your expert to show the jurors what his investigation revealed so interestingly that they will reach the right conclusion before he does,” said Angus. “Take the direct examination of Fire Mar­shal Olsen in Flinders v. Mismo Insurance Co., a mock case used in a National Institute for Trial Advo­cacy course. You say, ‘Chief, would you take us with you as you drive to the Flinders’ fire? And as we arrive, would you tell us what we’re seeing and explain what it means?’

“‘I’ll try,’ he says. And with the court’s permission, as the chief answers your questions, you make two lists on the board:


Reddish-brown flames Broad horizontal development Water makes flames brighter Acid found in ashes

Means Chemical fire Good ventilation Accelerant Acid was accelerant

And before the chief gives the jury his professional opinion about the fire, the jury has already figured out it was arson,” said Angus.

“Humph,” said Myra. “Sounds too creative for me.”

“I would take that as a compliment,” said Mike Torrent. “Are there other techniques we should know about that work with a good theme to make the case come alive?”

“Enough to fill a book,” said Angus, “but you’ve got to be careful. Everything you do should fit you, and never look artificial or contrived–which I think is really Myra’s point.” “No it’s not,” she said, winking at me.

“Two last things to think about,” said Angus, picking up his briefcase. “Markers and souvenirs.

“A marker is something you do or say that makes the jury take special note of some bit of testimony. The late Craig Spangenberg of Cleveland would sometimes stop his cross-examination when he got a particularly valuable answer, walk over to the court reporter and say, ‘Would you mark that please?’

“Of course, the jury marks it in their minds, too. Spangenberg said markers were particularly effective when the jury didn’t understand yet why this information was important. But they kept it in the back of their minds until they put the story together later on.”

“What about souvenirs?” said Sandy Ramirez.

Angus said, “Wouldn’t you like to hold in your hand just for a moment the actual pen Abraham Lincoln used to sign the Emancipation Proclamation? Lots of people understandably feel that some of the good or evil from important events rubs off on the inanimate objects that were used in them.

“So do you think you’d like to see the pen that Lamont Reynolds of Fast-n-Tite used to sign that letter to the U.S. senator–the one that resulted in giving Reynolds six more weeks to squeeze $14 billion out of Fast-n-Tite?”

Angus stood up. “Well, I’ve got ‘miles to go before I sleep,’ ” he said. “Are you going to the Fast-n-Tite trial on Monday?” said Sandy. “It’s bound to be better than it was today.”

“Why?” said Mike Torrent. “Because it couldn’t get any worse?” “No,” said Sandy. “Because the plaintiff’s lead counsel, Mark Rando, was sitting in the next booth for the past 20 minutes.”

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.

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