How to Litigate: Case Themes and Theories

• This is the first in the How to Litigate series by the Rudder Group, focusing on a practical approach to litigation.
• The discussion centers on defining case themes and theories, led by experienced trial lawyers and litigators.

Introductions

• Vona Ekpebe is a defense attorney specializing in general commercial litigation with a focus on healthcare.
• Jeff Rosenfeld is a plaintiff attorney, a managing partner at Alston and Byrd in Los Angeles with 35+ years of litigation experience, handling complex and varied matters.
• Jim Fitzgerald is a mediator, arbitrator, and trial consultant with a 40-year background in commercial business litigation at big law firms.

Why Define Your Case Early?

• Defining the case early is crucial for being organized and developing a cogent theory.
• Jeff Rosenfeld breaks down his approach into three paths: legal analysis, emotional appeal, and understanding the opponent's position.
• Legal analysis involves identifying claims and elements, using special verdict forms to lock down the legal aspects while fact-finding.
• Emotional IQ is important to appeal to triers of fact who want to do what is fair and reasonable.
• Understanding the other side's strengths and weaknesses from the start, listening to the opponent to find holes.
• Early assessment is helpful to have a roadmap, understand what fact-finding will look like, and organize a defense.
• From an in-house perspective, clients want to know what distinguishes the case and the potential costs.
• Early definition helps to inform clients for settlement planning based on an understanding of possible defenses and theories.
• It is important to assess the case from the start, even before discovery.

How to Define Your Case from the Start

• As a defense lawyer, Vona Ekpebe starts by reading the complaint to identify claims and elements.
• Develop charts listing elements of the claims and needed evidence for each while reviewing the facts.
• Broadly outline a possible case theme; using an "inevitable" theme when dealing with a plaintiff who was sick and consequences were likely.
• Important to be objective in analyzing the case, despite client preferences.
• It's important to know what the witnesses are going to say, and what you don't want them to say, before discovery to show preparedness.
• With respect to clients, it really depends on what space you're in - tough conversations with clients and how they will take that.
• Reserve brutal honesty until later and figure out how the facts and law will break.
• Remember that clients are in business, and litigation is a tool.
• While thinking about the law, facts, and potential outcome, consider when the business discussion with the client should occur, discussing risks, upside, downside, and potential worth.
• Communication with in-house counsel, especially about early assessments, can help inform budgeting and setting reserves.
• You don't want to miss the mark, so give an overview including strengths, bad news, mitigation efforts, and what story can be told.
• It is important to develop a level of trust such that their assessment is valued, not the need to write a check and just settle the case.
• Sometimes you may decide to litigate even if settlement is best to avoid setting a precedent.
• It is important to strategically understand the client's business and make sensible decisions.
• Everything has to be geared either for trial or settlement, consistent with business models and future prospects.
• Creating reasonable expectations is crucial for both sides, as people may have "wild ideas" about their case.
• Clients need to understand the case's realities, entitling them to understand their case.
• You should know enough about the case to set a proper reserve, so set a budget and justify that to clients, including potential problems.
• Be aware of client sensitivities, especially in corporate representation and how the assigned case might impact them.
• You can be careful to frank when advising but if the client is going to lose, they need to know even if they are about to leave the company.
• Also keep in mind if your performance will impact them, such as potentially causing unemployment.

Themes and Theories

• A theme helps build a story around the case, acting as an easy-to-remember phrase, such as "If it doesn't fit, you must acquit" from the O.J. Simpson trial.
• Build your case around this theme, ensuring evidence supports the overall story.
• Use your theme to tell a persuasive, common-sense story.
• A theme is not an argument; it is the way you want the story to be told, in the persuasion business.
• Break arguments into logic and make them simple.
• Explain what the facts, claims, the truth, and equity are.

Themes and Theories with Juries

• Jurors sometimes recall a key theme that encapsulated the case for them.
• You're telling them a story at the beginning and you're filling it in with the film. Most cases don't ever get to trial, so come up with the theme early on.
• This helps encapsulate your thinking on what the case is all about and to come with/ present the theme and theories.
• Themes should embody the KISS rule: Keep It Simple, Stupid.
• Weave the theme into every aspect of the case through each witness.
• Themes are key to basic human nature and help people to appreciate simplification.
• Juries will appreciate you for making it easy by making sure the cases make sense.
• Themes are helpful to prepare witnesses for depositions, making them think about the case in a broader.
• If you state a theme in front of a mediator or arbitrator, if says that you’ve thought about their case and that they’re organized in their thinking.
• Make sure to make it is a good theme and is consistent with the facts, and doesn't come across as stretching. It can blow up in the worst way.
• Themes are good for judges too and in later slides they will go over it.
• A theory explains why something happened, for instance, if an accident occurred because of texting while driving.
• In short, themes are your elevator pitch, while theories are the building blocks of the case.
• Your job is to convince what is true/ fair which is why they all interrelate and it needs facts to back it up.
• There is ridiculousness is people that do not know what their case is about without discovery when the plan should have already been made.
• This all makes predeposition very important.

Brainstorming Themes and Theories

• Brainstorming should be done to get people from come from different points of view to get different ideas because people may have different perspectives.
• The goal is to get you’re your finding through your pleading.
• Reduce claims and defenses to their narrowest points to come to cohesion.
• Consider different opinions even where you may disagree.

Managing Theme

• Have a clear message that the other people who work with you help shape you. Not only that, but will also test your theories about whether they actually, whether it sounds too clever or too cheeky or whether it really makes sense or whatever.
• Nonlawyers are useful for testing your themes and see if people see it to the point they got the idea.
• Testing your clients could be good when creating a theme when your theme is about to be for trial or not depends you should know what you’re going to use.
• Themes help even if you don’t get to trial for a jury still.

Working in House

• Some points on if you should use outside counsel is what Jeff was alluding to, would you help with the right and good information to the cases it needs, in and out. So it looks as clear the way around.
• So you can understand why there are such cases and things here is the time when you talk and make sure every is in the best direction of the case.
• There has been a big hole and a change in certain perspectives in certain way for some reasons always be better than the way things show up through all other perspectives.
• Some important are always to be better and to change the ways they are and how you want to present some thing.
• Be surprised at how they are not always the same way to understand the what is going to take on to hear each other and understand each other. That should always be thought about. You understand each other so there is better understanding.

Listen to the people and look to the claims/facts

• People want to hear, so listen to what each claim’s fact and truth then there might be good ways come for. So good to hear what is with each other. Just make it clear the best of the way. Make it’s clear that all this are not personal.

Understanding that there are people with different thought about cases.

• Understand that you get all points of few better all clear when you have communication what’s going on with each case together. A good long shot is all need to get what is need. To. To what you need to the is there always what you the point of. See what is and all help that well the client look better.

Themes with Litigation

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Other Advice

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