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For the last 25 years Nike’s iconic tagline, “Just do it”, has been a call to action. For the competitive athlete, that means striving to reach the next level; for the rest of us, perhaps, it means stop thinking about working out and start, well, “doing it”. But what may be a great motivational message for the fitness crowd should not be your litigation counsel’s mantra.  Winning in court, as in athletics, involves more than just successful execution of mechanics - - it means having an overall game plan. A critical part of the defense’s game plan involves examining the case from a “big picture” standpoint and fashioning ways to present it in a light most favorable to you, the client. This means that early on, your lawyer should start developing not only the legal theory that underpins the defense but also a theme that will serve as the foundation for his diverse activities on your behalf during the course of litigation. A clear theme of the case will provide the judge (and ultimately, perhaps, a panel of jurors, if summary judgment does not eventuate  - - see below) with a conceptual framework for the facts that your counsel presents. It organizes the facts, and yes, for convenience and emotional appeal, usually oversimplifies them.

The theme is basically a declarative statement that answers the question “What is this case about?” It is similar to a tagline, if not always as cryptic. That said, when it comes to themes, less usually is more. The best ones sum up the entire case in the fewest possible words. For example, in a suit against a bank to recover monies embezzled by the company’s bookkeeper, who was hired despite warning flags in a background check, the theme might be articulated as follows:  “The farmer hired the fox to guard the henhouse.” Or, in a wrongful termination suit pitting an ousted COO against the CEO with whom he developed the company’s blockbuster software when they were college roommates: “The cruelest betrayals come not from your enemies but from your friends.”

Without a doubt, the theme of the case is invaluable for purposes of trial. Any lawyer walking into the courtroom better have his theme embedded in his opening argument and otherwise at the ready. Indeed, it is important for your lawyer to do early work on the theme because he may discover, for any number of reasons, that the theme he initially selected doesn’t work or needs adjusting. Better to be tweaking the theme in the office during the pretrial discovery period than on the courthouse steps on the morning of trial. Developing and refining the theme well before trial will assist in determining the overall scope of discovery and the number and identity of witnesses that need to be deposed.  It will also better prepare counsel for dispositive motion practice. In this regard, consider the importance of theme in the context of the summary judgment motion.

Of all the weapons at the litigator’s disposal, the motion for summary judgment is one of the most powerful.   It can terminate a case in its relative infancy, carve away chunks of a complaint, or otherwise materially alter the landscape of the litigation. Done right, dispositive motion practice will not be limited to supplying the court with the legal grounds for its ruling. The legal arguments need to “nest” in a compelling story or narrative. That way, the judge has a reason to decide in your favor that arises not purely from counsel’s legal arguments but from a visceral connection to your case. This is particularly critical when the court is “on the fence”, largely convinced of the merits of your legal arguments but perhaps still reluctant to definitively rule in your favor.

The ideal companion to theme in the summary judgment context is focus. Focus will begin well before the motion is made, with discovery being tailored toward building the record needed to win the motion. When presenting the motion, your counsel will want to create the impression of simplicity. That is, there is nothing unusual or intriguing about the case; it is an ordinary case where the law is well settled and the factual record is clear. Equally important in the presentation of the motion is that there be a single, clearly identifiable argument upon which counsel relies. This does not mean that there cannot be alternative bases for relief presented. But an “everything but the kitchen sink” approach, with little or no weighting of the arguments, is inadvisable. When a judge has a difficulty identifying with precision the main argument upon which a party relies, it usually spells trouble for that party. Accordingly, counsel’s summary judgment brief must achieve focus by presenting - - up-front and with the greatest clarity - - his principal argument, which will harmonize with the over-arching theme of the case.

To sum up, “Just do it” just won’t do. The case must be analyzed early and from all angles. A narrative must be developed therefrom that puts the client’s actions in their most favorable light.  That narrative must be reduced to a compelling theme. The legal theory and arguments of the defense are then wrapped in the theme and presented, whether to the court in dispositive motion practice, or to the jury in the context of a trial, as the controlling storyline of the case, a storyline that compels the conclusion that it would be contrary to law - - and contrary to the judge or juror’s “gut” - - for the client to be saddled with liability.