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hello welcome to mentoring with the Masters my name is Jennifer Kuykendall I'm the third circuit representative for the young lawyers division Board of Governors today we have the honor of speaking with the 2013-2014 president of the Florida Bar Jean Pettis Jean is going to be speaking with us about developing a theme for your case from threshold to trial Jean thank you so much for being here today it's a pleasure being here Jennifer Jean what are some of the factors that you consider in developing a theme for your case from the time that client walks through the door to the time you're giving your closing arguments I think it touches upon a critical part of litigation that's often overlooked some time we see lawyers who handle cases and what I call a disjointed fashion you know they answer the complaint take a deposition mid case think about a mediation the case doesn't settle end up in trial and then they try to start coming up with their themes at that point in time but many times it's too late because some of the evidence that you're going to use whether it's depositions or whether you've even started planning the theme in the mind of the judge has already taken place so it's critical that we start thinking about it from day one and in in my practice and I've tried nearly 70 cases some lasting five months four months you know I've had two different trials at those two different lengths so I've been in court a lot but I think it's really important that from day one when you get the complaint I start thinking of what is my theme and I do both plaintiff and defense litigation so if a family is in my office with a particular set of facts I'm thinking about how will that play out ultimately to the jury because that's the end point if it resolves before then then great but you want to be able to have a stream through your case it takes you all the way to the end to be safe that there's some continuity in the case so if it's on the plaintiff saying you listen to the story of the family and you think about what types of claims and what would be your angle or your theme of the case if it's on the defense side and you get the complaint I'm immediately thinking about from experiences what's going to be my theme here and in my practice I have what I call many conferences with my team and whether it's a another lawyer who's gonna work with me on the case my paralegal my nurse that's working with me on the case and it's important that they understand your theme because you being on one page and others that may touch the case on another will again lead to inconsistencies in the case so literally in the first 10 days I'm meeting with my team here are my thoughts what are your thoughts to get their input and then you start developing your theme it's not to say that your theme will not evolve over time obviously as more information becomes available I adjust my theme a little bit to address that new information but I have found from experience with that theme going into my my case it helps dictate what are my motions that I want to file do I want to attack this do I not want to attack it that's leaving that in lead to a better case for me at the end so just because you can dismiss something doesn't mean you should dismiss it sometime leaving it in gives you more attack points and I think that's true from either side of the case so strategically thinking about what dispositive motions motions to dismiss motions for summary judgment within the context of your theme so you have to have the theme early on to start making those type of judgments when you when you look at some trials I get lawyers who get up and I can't recognize any connectivity from their jury selection to their opening statement to their closing argument and certainly at that stage of the game we must have connectivity you must ask questions even in the preliminary phases start setting up questions for the judge to start thinking about challenges for the judge to start thinking about that tie into where you want to end up on a case when I pick juries I spend a lot of time whether it's called conditioning or just trying to learn more about the prospective jurors but it's all based on what my theme is going to be and if you can get people commenting on your theme if not commenting thinking about your theme getting the whole binary to think about the theme it's so much more smoother when you lay your case out they've already been awaiting that particular evidence because it's a part of your theme I get up an opening statement I tie in you'll recall some of you commented in the word our process about X again that's my theme and that's really important because of the fact that you're gonna find in this case that's going to be a critical consideration of yours now Wow they have a life experience that they've shared with me in the jury selection process it's gonna be a part of the case they're in tuned to to to that piece that happens that by coincidence be my theme and and and and and and that's a smoother process through the case and when you get up for closing argument now you recognize you know they recognize that you're able to tie it all together on a foundation that they have in common with you I think it leads to a much better result so as early as the client walks in the door or as early as the claim is called in to you if it's on the defense side of the case I think it really behooves you as a lawyer to start at day one thinking about it with the understanding that themes evolve don't be afraid of letting it evolve but always having one in place is critical certainly some lawyers may not have had the opportunity to experience a trial advocacy class while in law school so maybe have never used a theme in their cases before could you give us a real-life example of a theme that you've used yes that's a good question again as the case is unfolded I try to set my cases up I like real-life emotions I like themes such as credibility who believes that credibility is an important part of life everybody raises a hand mr. Johnson why why do you think that well because it's essential to us as human beings it's what we should be doing do you agree with that mrs. Smith now you're setting that theme on and the question is prompted on something that I know I hope 99% accuracy everybody's gonna agree with it credibility so you know when I get into the kid when I get up I've talked to them about credibility and I get up to do opening statements now guess what my theme is credibility this is a case about credibility and even though you may not be comfortable with passing judgment one of the things you're going to be instructed as a juror to do by her honor is to judge the believability the credibility of the witnesses of the plaintiff of my witnesses and I invite you to look at the credibility in this case and I believe once the evidence is all loud you're going to see that the story that's been presented here is not credible it's not believable why do I say that let me tell you why so now I got a theme of credibility that's based on a common value of ours we all want to believe in believability and credibility so I love interweaving that whenever I have that that's a you know that's one that I always keep in my pocket because it's such a core value of ours other themes that that that that you know you always use the term common sense if there's a debate between two witnesses one said happened this way one said it happened that way you talk about I often say you know my mom taught me early on to use your common sense just you've got what makes sense here you know what as we navigate life we make pretty good decisions just using giving common sense you're gonna have to use that in this case you're gonna have to use your common sense as you listen to the evidence does it make sense every single thing we put before you every single thing they put before you ask yourself does it pass that test I submit to you what they're going to tell you are this in closing argument I submit to you that what they have argued of XY and Z doesn't pass the simple common-sense test why do I say that does it make sense that's such-and-such since why would they you know you use that theme again working on on you you must develop your case based on themes that are going to the jury is going to be able to understand believe in and connect with excellent lawyers talk about justice you know who could argue against justice everybody believes in justice so if you could take that term and weave the facts into it that's always a term that's a good theme in the case that you can talk about how our system of justice was built on you know what the principles are and and and get people emotionally tied because once you have people connected to your theme that happens to connect to their core beliefs no you got a jury who's more likely to be favorable to you and your client but that's the importance of thinking about this all the way through when I litigate on significant cases I'm planting my themes by questions that I'm asking in the first deposition you're talking would you agree with me that common sense would dictate such a section well yeah I would agree with that so I'll tell them you're gonna hear that even the plaintiff even the defendant thinks common sense should be in play here that's how do I know these things I've taken the depositions of the party and they're gonna tell you that they common sense would dictate such as so as early as that I got a theme that I'm developing it does not hurt if you let the theme go you know you're in the midst of the case you're you're you're in a year of litigation and the common sense theme is no longer really playing for you you can let it go but at least you thought about it and you had options in what you utilize going forward the critical piece and I mentioned a second ago is not waiting to the end to sit down the case is going to trial and now I'll just start thinking about what you're going to use as your theme why because if you do it that way the facts that you've gathered are gonna dictate the theme as opposed to you thinking about the winning theme and building facts around it and and there's a slight difference there when you build from the beginning you have the ability to to be more consistent when you're at the end the week before trial and you're trying to come up with it you're boxed in and and and and they're not going you're not gonna have the questions in the depositions that are gonna be read you're not gonna have the questions you don't know the answer is how these jurors are gonna be how their witnesses are going to respond to some of these theme attic type questions so now you're shooting from the hip which is not what you want to do so it really is a ribbon that flows through the entire case from the beginning to the end but those are some of the type general themes that I use in cases often well you've certainly provided us a lot of very good practice tips in developing a theme from when the client comes in the door to trial through all stages depositions everything so we appreciate you so much for your time and being here thank you so much and thank you all for having this program I think it's great thank you you