Hopefully, as you have reviewed the file and considered the strengths and weaknesses of your case while performing this 120-day countdown to trial, you have been logging any thoughts you have as to possible themes on a Theme Log. See Ch 1, File Review, Proof Rubric, Trial Logs and Checklists of Trial Preparation Tools. Brainstorm additional choices. Review this log and spend time debating each option. Ask, what can I sell? Review the Elements-of-Proof Rubric and confirm that the evidence you will present will fit within the confines of the chosen theme. Recall what you have learned about the common beliefs within the community.
A Whole Lot of Themes to Choose From
- Defendant was running late.
- Quality of life.
- Good versus evil.
- Weak versus the powerful.
- The defendant experimented with lives.
- Poor versus rich.
- Stuff happens.
- Plaintiff will never be normal again.
- No objective evidence.
- Why are we here?
- Plaintiff was a good neighbor.
- It was just an accident.
Case-Specific Theme Ideas
Following are some suggestions of themes that may fit the unique needs of different types of cases:
Motor Vehicle Accident
- ח: Honesty (“∆ claimed it was only a slight tap.”)
Consideration (“∆ was running five minutes late.”)
∆: Just an accident (“Sometimes accidents happen through no one’s fault.”)
Credibility (“ח’s claims just don’t add up.”)
- ח: Expectations (“Customers expect warnings for known hazards.”)
Diligence (“Diligent employers check the sidewalk after a freezing rain.”)
∆: Self-discipline (“We all have to watch where we walk.”)
Pride: (“∆ took great pride in his store.”)
- ח: Responsibility (“For six months, the ∆ knew the brakes were bad.”)
Normalcy (“The collision was a life-changing experience.”)
∆: Evidence (“There is no objective evidence of injury.”)
Greed (“Cars get bumped every day.”)
- ח: Obedience (“ח carefully followed his doctor’s advice.”)
Experimentation (“∆ experimented with lives.”)
∆: Caring (“∆ sat by ח’s bed for days.”)
Stuff happens (“The best medicine cannot cure every illness.”)
- ח: Reliability (“You don’t expect a new $500 bicycle to fall apart.”)
Justice (“ח’s family deserves justice.”)
∆: Devotion (“∆ is devoted to their customers’ satisfaction.”)
Courage (“It takes courage to invent and market new products.”)
- ח: Weak v. Powerful (“ח is but one individual.”)
Glutony (“∆ corporation demanded more.”)
∆: Generosity (“Corporate ∆ gives back to the community.”)
Loyalty (“Corporate ∆ is loyal to customers and community.”)
- ח: Determination (“ח was determined to make the deal work.”)
Sacrifice (“ח sacrificed everything.”)
∆: Lust/desire (“ח wanted to get rick quick.”)
Order (“∆ must function according to the written rules.”)
- ח: Quality of life (“There are times when the quality of one’s life is so diminished that death would be more humane.”)
Good neighbor (“Before the collision, ח was everyone’s favorite neighbor.”)
∆: Sloth (“ח had options to improve, but chose not to.”)
Respect (“No one disputes that the ח was injured.”)
Beth D. Osowski represents civil litigants in many areas, including motor vehicle accidents, premises and product liability, medical and legal malpractice, contract and business litigation, construction disputes, will contests, real estate and landlord/tenant matters. In 2007, she received what is believed to be the largest jury verdict in her county’s history for a premises liability case.
She has presented many legal seminars as well as authored dozens of outlines for continuing legal education courses. Ms. Osowski ranked first in her University of North Dakota law school class all three years, and was awarded Moot Court Champion and Best Oralist. Ms. Osowski is the author of Trial Preparation Tools, from which this article is excerpted.