Trial Themes That Move Juries: Building and Threading the Theory of the Case

This session takes the case from intake through the eve of trial. Ms. Bernabei begins with the intake: knowing enough about the case to hypothesize legal theories and the facts needed to prove each claim — especially difficult in whistleblower cases, where the jurisdiction and the statutes and regulations in the technical field covered by the whistleblower’s reports drive the elements. She then covers the client consultation, pinning down facts and dates, and building the chronology that determines retaliation claims; collecting the facts that show whether legal claims exist and how strong they are, including other employees who raised similar claims and witnesses who support the client’s account; and testing every element against the jury instructions before filing, so each is supported in the complaint or stated upon information and belief. The session closes with building out the missing element — using “Rules of the Road” theories and deposition document lists to prove what defendants deny knowing — preparing the client not to give away the claims, and, if summary judgment is denied, working backward from the closing argument: keeping the trial story simple, admitting facts you cannot deny, and giving a reasonable explanation for bad facts so the jury believes your client.

Jurors do not decide cases by assembling disconnected pieces of evidence. They decide who should win by looking at the stories presented to them. A powerful trial theme gives the story moral meaning. A theme is not a slogan pasted into separate trial parts: it is the case’s moral meaning, repeated with increasing proof and power. It is the truth jurors begin to believe in the beginning and feel compelled to act upon in the end. This presentation provides trial lawyers with the tools to carry that meaning from first question in voir dire to the final words of the closing argument – without sounding artificial, repetitive, or argumentative.