A stong, carefully chosen theme brings clarity and simplicity to the presentation of your case
In many ways, trying a case is like playing in a major sporting event. Think of it like playing in the Super Bowl. Before the big game, there are countless hours of preparation, practice, reviewing film, a game plan, and at the end of the day, someone wins and someone loses. But, trying a case is actually much tougher in many ways because of the constantly changing landscape we have to deal with and lack of certainty.
For example, what if on Super Bowl Sunday the players are told that the league decided to continue the game for three months? Three months later, after further preparation and planning, the players are told just minutes before the start of the game that the rules have changed. No longer will ten yards get you a first down; now the league decided to make it twenty yards and you only get three downs instead of four. And the field is now going to be 120 yards long instead of 100. Also, by the way, that great right-handed quarterback will now be told he can only throw left handed or he can’t play. Last but not least, when playing the game, the fans have all been given rocks and bottles to throw at you during the game.
Kind of sounds absurd, right? But that’s what we go through when trying cases. You spend countless hours preparing the case for trial. Then, you show up for trial to learn that your case is continued for several weeks or months. When you come back and finally start trial, you’re trying a different case than what you thought you’d be trying because the motions in limine didn’t go your way and now your best piece of evidence doesn’t come in, or your expert cannot give some of the opinions you thought he would give. And on top of the changed landscape of the case, the defense lawyer is objecting and doing everything to derail the smooth presentation of your client’s story. Anyone who has tried cases knows what I’m talking about.
Because of the intensely adversarial setting that we go through to convey our client’s story to the jury, we need to have an effective theme for the case. The theme should be clear, unmistakable, and something you can keep coming back to during the chaos of the trial. It will be the reference point for the jury throughout the trial.
The trial theme: A society ideal
I’ve always believed that a trial theme should be an ideal that we as a society hold. It is an ideal that no one can really dispute as being righteous. The goal is to make the theme simple, understandable and indisputable. The theme will be your mantra during all aspects of the trial from voir dire, opening statement, direct and cross examinations to closing argument. Usually, there is one overarching theme for the case. But that doesn’t mean that there aren’t other sub-themes that also apply to certain aspects of the case. It’s important to select the theme(s) well in advance of trial which will help organize your thoughts and preparation.
Examples of trial themes
I always try to come up with a unique theme for the particular case I’m about to try. Sometimes I’m able to do it, but that’s not always the case. Many times I go back to the tried and tested trial themes that many have used in the past. For example, the following are some examples of common themes:
• Taking Full Responsibility
• A Betrayal of Trust
• Making up for the Harm Caused
• A False Sense of Security
• With Power Comes Responsibility
• Profits over Patients
• Corporate Greed at the Expense of Safety
• Public Safety
• Videos and Your Eyes Don’t Lie
• A Picture Speaks a Thousand Words
• Dishonest Conduct Should Be Punished
Ultimately, the theme you select should be something everyone would agree is a unifying value that we hold in society. For example, in a personal-injury action, no one will dispute that if someone is negligent and caused harm, they should take full responsibility. As another example, if a corporate defendant has a lot of power, it should come with responsibility. The theme should unify the jury as you present your case.
Test your trial themes
I know that a lot of trial lawyers use focus groups on their cases before trial which is a great way to test your trial themes. In some cases, multiple focus groups are helpful to compare how different themes resonate with potential jurors. Certainly, focus groups are a great way to come up with the right theme for your case.
Personally, I don’t do a lot of focus groups. But those that know me know that I talk about my cases incessantly. I talk to everyone about my upcoming trials: my family, the gas station attendant, the waitress at a restaurant, my friends, the trainer at the gym, and I could go on and on. I particularly like to test my themes with my most conservative and skeptical friends because, after all, that’s more likely the kind of juror I’m going to get in trial.
No matter what your approach is, take the themes you have on paper and test them out with people. The feedback that you get will be very helpful as you fine-tune your preparation for trial.
Using your themes during trial
Once you have figured out the theme for your case, you need to introduce it to the jury early during voir dire and continue to refer to it during the presentation of the case up through closing argument. Most jurors will make up their mind about a case by the time opening statements are done. So it’s important to plant the seeds of the theme of your case from the beginning. The following are some examples of themes for different kinds of cases and how to introduce and work them into your trial.
Themes for an insurance bad-faith case
When I try an insurance bad-faith case, one common theme is a “betrayal of trust.” I spend a good amount of time during voir dire discussing people’s thoughts on the purpose of buying insurance.
Inevitably, the discussion organically becomes a consensus that insurance is there for peace of mind when something bad has happened. There is also a common belief among jurors that during the time of need in making an insurance claim, people ought to be able to trust their insurance company to do the right thing. This now establishes the overall theme that the case involves a betrayal of that trust.
To carry this “betrayal of trust” theme through the trial, I like to emphasize it during the cross-examination of the claims supervisor who authorized the denial. Usually, it’s with a line of questioning like the following:
Q: Mr. Adjuster, when you adjust a claim, do you want your policyholder to believe you when you communicate with them?
A: Of course.
Q: Do you want your policyholder to feel you’re telling them the truth?
Q: Do you want your policyholder to have confidence in what you tell them?
A: Yes, I do.
Q: Do you want your policyholder to trust you?
Q: And sir, in this case, when you sent this letter telling my client that their claim was denied and would not be paid, what would have happened if my clients believed and trusted you?
A: Well, I guess we wouldn’t be here.
Q: Right, the claim would have been closed and no payment would have been made, correct?
A: I believe that would be true.
Now, these are pretty simple concepts that really can’t be disputed. After all, no adjuster is going to say that he/she does not want their policyholder to believe or trust them. The reason I ask these questions is because it reinforces the theme that the insurance company betrayed the trust of the client. And, if I get to the second phase and the jury finds that the conduct was malicious, oppressive or fraudulent, I ask the jury the rhetorical question, “What would have happened if my client just trusted their insurance company?” Well, the answer comes from the defendant’s own witnesses: the client would have been cheated out of benefits they deserved. In short, it reinforces the theme of a “betrayal of trust.”
Punitive damage themes
On the subject of punitive damages, a common theme I try to develop is that “dishonest conduct should be punished.” To develop this theme, I like to ask a series of questions in voir dire like the following:
Q: Mrs. Jones, do you think that sometimes people simply make honest mistakes and really didn’t mean to cause harm?
A: Sure, of course they do. We’re all human after all and humans make mistakes
Q: And do you think that sometimes people don’t just make honest mistakes, but they might dishonestly do things to benefit themselves and in the process cause harm to others?
A: I’m sure that happens too.
Q: Do you think that sometimes, people do things to try to cheat other people out of money for their own benefit?
A: Well, yeah, you hear about that all the time.
Q: Do you think that as a society we ought to treat those two types of conduct differently? In other words, conduct which is an honest mistake that cause harm versus dishonest conduct that causes harm?
A: Sure, if the evidence proves that.
At this point, you’ll find that most people will agree with the basic concept that people can cause harm to others both honestly and dishonestly. You’ll also find that most people will agree with the notion that honest and dishonest conduct should be treated differently.
Now you have prepared the jurors for a discussion about punitive damages and your theme that “dishonest conduct should be punished.” Inevitably, there will be some jurors who have heard or read about punitive damages and have negative feelings about it. For example, I’ve had more than one juror describe their understanding of punitive damages as, “Isn’t that were the plaintiff gets a big windfall?” To help get jurors understanding the concept of punitive damages, I like to refer to them as “penalty damages” or “punishment damages.” Ask questions like:
Q: Ms. Juror, what do you think about a system that allows for civil penalty damages if the conduct was dishonest, and not just an “oops”?
Q: Mr. Juror, what do you think about a system that allows for civilly prosecuting dishonest conduct in cases like this?”
Q: Do you think that dishonest conduct should be punished? Why?”
One of the things I’ve noticed in the past several years is that jurors, generally speaking, are more receptive to the concept of punitive damages. I’ve found this to be true even in conservative jurisdictions. I think the reason is because most jurors have heard about corruption cases where people have cheated other people out of money. I bring up examples like, Bernie Madoff, Charles Keating, Jeffry Skilling, and Enron to get jurors thinking about it. Examples like these bring up the notion that sometimes greed causes people and/or corporations to do bad things and in the process cause harm to others. In the end, you are unifying the jury to agree that if the conduct was dishonest, it should be punished.
Damage themes in a personal-injury case
In personal injury cases, a couple of common damage themes are “taking full responsibility” and “making up for the harm caused.” You should set the stage in voir dire for the jury to understand that their award of damages must equal and match the harm your client has suffered. Nothing more and nothing less. You should tell the jury that before they can decide how much money to award in damages, they must first consider the level of harm that your client has suffered in the past, and will continue to suffer in the future. Go over the harm in detail before you ask for money. While the award must not exceed the amount of the harm, it should not be less than the harm either.
Especially in catastrophic and wrongful-death cases, don’t be shy about acknowledging that you are asking for a lot of money from the very beginning. After all, the reason is because your client’s harm is so significant and the award must equal and match the harm. Address the common human reaction that “it’s just too much money for one person,” by telling the jury that if that’s the case, “then it is just too much harm for one person, too.” But your client doesn’t have a choice on the level of harm they will endure, that’s established and out of the jury’s control. Rather, what the jury does control is to make sure that their award equals and matches the harm. Again, nothing more and nothing less should be expected.
Because you know the defense will argue the issue of sympathy, hit it head-on in your closing. Tell the jury that sympathy is not what you’re looking for and, frankly, sympathy is inadequate. Instead, what you want is justice and what’s fair. Go back to your theme that the award of damages must equal and match the harm. Not a penny more and not a penny less. The goal is to get the jury to really feel the loss your client has endured so they can translate that into a just and fair verdict on damages. You want a verdict that will tie into your theme to make the defendant not just take responsibility, but take full responsibility.
Establishing the right theme(s) for your trial is important for many reasons. It brings clarity and simplicity to the presentation of the case. In the end, this is what persuades a jury. Hopefully, this article will help you in effectively using your trial themes in your next jury trial.
[Editor’s note: This article was presented at the 2014 CAALA Convention]
Ricardo Echeverria is a trial attorney with Shernoff Bidart Echeverria LLP, where he handles both insurance bad-faith and catastrophic personal-injury cases. He is currently the incoming President of CAALA and was named the 2010 CAALA Trial Lawyer of the Year, the 2011 Jennifer Brooks Lawyer of the Year by the Western San Bernardino County Bar Association, and a 2012 Outstanding Trial Lawyer by the Consumer Attorneys of San Diego. He was also a finalist for the CAOC Consumer Attorney of the Year Award in both 2007 and 2009, and is also a member of ABOTA and the American College of Trial Lawyers.
Copyright © 2020 by the author.
For reprint permission, contact the publisher: Advocate Magazine