Develop Trial Themes Early—Even if You Never Plan to Try the Case

By Chad Colton, Markowitz Herbold PC

As much as I love trial work, the main goal in litigation should be to find a resolution of cases without the expense and risk of trial. But that goal too often leads clients, litigators, and in-house counsel to procrastinate a core piece of trial work that helps the case regardless of whether it goes to trial: developing trial themes.  Here’s why a proactive approach to trial themes can benefit your litigation strategy.

Why Early Trial Theme Development Matters

1. Creating a Compelling Narrative

Any case that goes to trial needs a compelling story rooted in trial themes that resonate with judges and juries. Trial themes are short, memorable phrases that encapsulate your main arguments. For example, a common plaintiff's trial theme might be that the defendant "put profits over people." These themes create a lens for the jurors to see case through and provides important context as the evidence comes in at trial. 

2. Identifying Strengths and Weaknesses

Developing trial themes early forces you to confront the strengths and weaknesses of your case. This process helps you understand the storyline around these elements, allowing you to frame your case effectively. By addressing potential weaknesses early, you can strategize on how to mitigate them, and by highlighting strengths, you can build a robust narrative that supports your position.

3. Guiding Discovery and Depositions

Early trial theme development directs your efforts in written discovery and depositions. It helps lawyers focus on obtaining the evidence that matters most for your narrative while disregarding less critical information. This targeted approach ensures that your discovery process is efficient and aligned with your overall trial strategy.

4. Empowering Witnesses

Trial themes provide witnesses with a consistent framework to base their deposition answers on. This coherence not only strengthens their testimony but also reinforces your case’s narrative throughout the litigation process. Witnesses who understand and can articulate these themes are more persuasive and credible. And by selecting trial themes early on, you can ensure that witness’s deposition answers are consistent with the themes that you present at trial—if it ever ends up there. 

5. Signaling Strength to Opponents and the Court

Developing evidence with trial themes in mind sends a strong message to your opponent and the judge that you have a triable case that you’re willing to take all the way if you have to. This perception can influence settlement negotiations, motions for summary judgment, and trial preparations. Demonstrating that you have a viable case and that you’re confident in how the case will fare in trial can put pressure on your opponent to settle or can sway the court in your favor.

Overcoming the False Bargain of Delaying Theme Development

Many lawyers and clients delay trial theme development, viewing it as an unnecessary early expense. But that’s a false bargain. Waiting until late in the litigation process to develop themes can leave you scrambling to address weaknesses and to gather critical evidence. By budgeting for early trial theme development, you position your company for success, whether through settlement, summary judgment, or trial.

Practical Steps for Early Theme Development

1. Engage Outside Counsel and Consultants Early: Collaborate with experienced trial consultants and outside counsel to start theme development as soon as litigation begins.

2. Conduct Theme Sessions and Mock Trials: Use focus groups and mock trials to test and refine your trial themes, ensuring they resonate with potential jurors.

3. Integrate Themes into Discovery: Align your discovery requests and deposition questions with your trial themes to build a consistent and compelling narrative.

4. Prepare Witnesses Thoroughly: Train company witnesses to understand and use trial themes in their testimony, making their statements more coherent, consistent, and impactful.

5. Communicate Confidence: Use your well-developed themes to show the court and your opponents that you have a viable case for trial, enhancing your negotiating position.

Developing strong trial themes early in litigation is not just about preparing for the unlikely event of a trial. It’s about creating a compelling narrative, identifying strengths and weaknesses, guiding discovery, empowering witnesses, and signaling confidence. By investing in this strategy from the outset, you put your company in a stronger position, whether the case settles, goes to summary judgment, or proceeds to trial.

For more tips and insights on navigating high-stakes commercial disputes, stay tuned to my WYNTW videos or follow me on LinkedIn.

Chad Colton helps companies and business owners navigate high-stakes commercial litigation—when businesses, reputations and livelihoods are on the line. He often serves as parachute trial counsel, joining cases at the mid-point or on the eve of trial (sometimes literally) to develop a hard-hitting trial package. He has taken nearly 30 cases to trial across the country and served as lead counsel on some of the most high-profile commercial jury trials in the Pacific Northwest.