In his famous speech to the Associ­ation of the Bar of the City of New York, on October 22, 1940, John W. Davis, one of the great appellate advocates of the 20th century, stated: "More often than not there is in every case a cardinal point around which lesser points revolve like planets around the sun, or even as dead moons around a planet; a central fortress which if strongly held will make the loss of all the outworks immaterial."
A Democratic party nominee for president in 1924 and the solicitor general of the United States between 1913 and 1918, who argued more than 135 cases before the U.S. Supreme Court, Davis knew what he was talking about. His speech should be required reading for all appellate advocates. His words are as true now as they were when he spoke them. And they go to the heart of the subject of this column: the importance of identifying a key theme, articulating it clearly and hammering it home in as many ways as possible.
A case without a theme is the legal equivalent of a mass of mercury or a passel of protoplasm. Linked together by nothing, it lurches and slides in different directions, an amorphous blob that never quite takes a discernible shape for the decision-maker. Remember that while you may know the essential themes of your case, having lived with it for months or years, your audience knows nothing, and may care little, about it.
Much has been written about the desirability of "telling a story" when arguing a case. Juries and judges are used to beginnings, middles and ends. They are also used to various plot lines, heroes and villains. The storytelling approach helps the jury make sense of an undifferentiated mass of material.
A unifying theme provides the mind with a hook — an organizing principle — to make sense of seemingly random bits of information. This is particularly true in complex cases, when a judge, or jury, may have little or no background in the area under discussion. Gerry Spence brilliantly focused the jury's attention on his theme in the case of Karen Silkwood, who had died as a result of exposure to plutonium. Spence was tasked with explaining the legal concept of "strict liability" to the jury. Rather than resort to legalistic explanations, he relied on an explanation of how, under the common law, the owner of an escaped lion was responsible for any damage it caused even if precautions had been taken to keep the dangerous animal from escaping. His theme was essentially this: If you let the lion (plutonium) out, you are completely responsible for any harm caused.
To truly be effective, the theme must flow logically from the facts, as it did in the Silkwood case. If a theme is forced, it will not ring true and will be revealed as the contrivance it is. Stated otherwise, you cannot shoehorn the facts into a prefabricated, one-size-fits-all theme. The theme must organically emerge — helped along, perhaps, with a little creative tweaking — from the facts.
STAYING ON POINT
One common mistake made by advocates, particularly on appeal, is making too many arguments. By the time the case is at trial or ready for argument, the time for issue-spotting is usually past. As has been discussed in previous columns, deciding what arguments not to make is as much a part of successful advocacy as deciding what arguments to emphasize. John W. Davis recounted that John G. Johnson, a famous Philadelphia lawyer, normally spoke to appellate courts for 20 minutes, focusing on one key point.
When he had finished, Davis opined, it was hard for his adversary to persuade the court that anything else was worthy of consideration.
A thematic approach also has another salutary benefit: It helps you, the advocate, organize your case and refine your theory.
I do not mean to be understood to be saying that you should lock in on your theme at the earliest possible moment and stick with it through thick and thin. In the life of a case, or during the evolution of an argument, things change. New facts, or newly issued judicial opinions, can transform a simple matter into a complex one.
Obviously, it is important to recalibrate your theme or themes as events unfold, and flexibly reevaluate your case, and strategy, at regular intervals. But at some point, when things start to gel, you can discern the broad outline of what potentially useful themes are emerging. This, in turn, can guide you as you gather facts, undertake legal research and plan your trial strategy, or your approach to a brief or oral argument.
Having settled on your theme, try to drive it home whenever the opportunity presents itself. Psychologists have confirmed what trial lawyers have long suspected: The more often you repeat your claim, the more likely it is that it will be retained and believed.
A biographer of Thomas Erskine, a great English advocate, wrote that one of his most successful techniques was found in his frequent repetitions. "He had one or two leading arguments and main facts on which he was constantly dwelling. But then he had marvelous skill in varying his phraseology, so that no one was sensible of tautology in the expressions. Like the doubling of a hare he was perpetually coming to his old place."
This skill — creatively repeating your main theme in different language and different iterations — is an invaluable one to cultivate. It is well worth the effort. Put otherwise, it deserves your energy and attention.
Douglas S. Lavine is a judge on the Connecticut Appellate Court in Hartford. He is the author of Cardinal Rules of Advocacy (National Institute for Trial Advocacy 2002) and Questions from the Bench (American Bar Association Section of Litigation 2004).