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Anatomy of a Civil Trial

An artfully done story can make a complex case simple, a boring case interesting, and a dull case exciting.

In a recent real estate contract case, the theme used was “the

devil is in the details,” while a child support case was “he said, she said, but he put his money where his mouth was.” A theme sets forth both the factual and emotional basis of the case. Tese themes provide the mental framework that allows jurors to evaluate the evidence presented at trial in a manner consistent with the verdict sought. Te real estate contract theme kept the jury focused on the written requirements of the contract. Te child support theme kept the Master focused on the fact that the father was paying money for the child. Jurors tend to evaluate the evidence in light of the theme that is introduced and that they adopt. Any information consistent with the adopted theme is easily remembered while any inconsistent information is forgotten or disregarded. Most people make up their minds early and tend to stay with their initial decision. Tese decisions are frequently based on widely held beliefs and preconceived notions based on past experiences. People do not generally like to change their minds, so a decision made

early is hard to reverse. A relevant study in trial advocacy the University of Chicago found that eighty percent of jurors formed their opinions following open statements and did not change their opinions after the evidence was presented. Te right theme helps jurors rationalize any and all of the conflicts and gives them the means to justify the desired result reached.

Using the Theme to Tell the Story Successful opening arguments use the theme as the

template for the story. Telling a story is one of the most persuasive means of communication as everyone loves a good story. Opening argument should never simply be the unemotional listing of facts and figures each witness will be expected to testify to. Facts piled one upon the other are generally ignored or forgotten without the framework of meaning to place them with. Te story should tell the information or evidence and its relationship to the theme. Te story should be thoughtful and factual squaring with a juror’s common sense and experience. How a jury is persuaded is contained in how counsel delivers and tells the story to the jury. An artfully done story can make a complex case simple, a boring case interesting, and a dull case exciting.

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