PICKING THE THEME

After the team is picked, how do you go about winning in eminent domain, or in other areas of litigation?

Trial lawyers know that simple, powerful, emotional themes play better in front of juries, than multiple, complicated, disjointed facts. Simple, powerful themes help you win.

Accordingly, speakers often point out the need to develop a single overarching “theme of the case”.

Where does this theme come from? Is it also picked by the quarterback, like the players? Is it developed in some process? A democratic process? A majority decision? Is it based on facts and evidence? Whose theme is it, anyway?

Some pundits attempt to connect the genesis of the theme of the case to an expert factual basis, for example from reviewing appraisal reports: “a review of respective appraisal reports will reveal the issues.... Determining and understanding these differences is critical in developing an appropriate theme….”

So, on this model, the theme starts with differences of opinion on appraisal issues. Many eminent domain lawyers, I suspect, would agree.

So, it seems, the reports come first, and the theme develops after.

There’s a comforting sense of objectivity and empiricism in this manner of developing the theme. No phony monkey business going on here. Here, all’s right with the world!

But, as we pursue the matter further, we find that reviewing appraisal reports may not be how the theme is actually developed in the twilight world, or the evil dark world, of eminent domain.

How the theme is actually developed is somehow often connected with team meetings. Hey. ‘Theme’ sounds a lot like ‘team’, doesn’t it? Picture the feuding families in Romeo and Juliet: “Are you ona mya theme, ora theira theme?” Or, say, West Side Story: “Eet’s usss orrr theme.”

The team approach, as in many areas of litigation, often uses periodic ‘team meetings’. Meetings are required for the team approach. Let’s face it, if a team doesn’t meet face to face, it’s not really a team, is it? And guess what? “Team” spelled backwards almost spells “meet”! Team meetings are devoted to various activities, that are basically chronological.

For example, illustrative team meeting topics might include:

1. Articulate theme

2. Assign responsibilities

3. Coordinate scheduling and efforts

4. Collect and verify data

5. Insure consistent data by all experts

6. Dissemination of information among experts

7. Discuss and challenge opinions

8. Establish necessary predicates

9. Discuss legal issues

10. Critique draft reports

Most experienced lawyers, in the field and in many others, if asked to make a list of topics for meetings with experts, might come up with such a list.

Surprise: the first topic for the first team meeting is to articulate the theme of the case.

Note: it seems that the theme may be set before the experts have done anything.

But I thought we said the theme comes after the appraisal reports?

But then, how could the theme, the first topic, be based on appraisal reports, the last topic?

How could the order of team meetings have gotten so out of whack?

Is this some kind of pretzel logic? A lurking chicken or egg problem? You can’t have a theme until you have appraisal reports, but you can’t have appraisal reports until you have a theme?

It seems that often according to the team approach, the theme of the case is something of a puzzle. Each of the experts has information which is a necessary and integral part of that puzzle. I will call such themes “team themes”.

Sounds here like the theme comes at the end. When the puzzle is finally solved, doesn’t it?

Quarterbacks, in all fields of law, dance all around how a theme gets developed. Anyone who tries analytically to connect a theme factually to trial preparation will get into similar theoretical difficulties.

Themes can come from reviewing the other side’s report, yet giving up reports in discovery is the last thing anybody wants to do, not the first.

Once you submit experts’ final reports to the opposition, you have to live and die with everything in those reports; a strategic decision should be made concerning how much information to include. W.C. Fields once said, ‘never smarten up a child.’”

Condemning authorities, at least in Florida under ch. 74 have to give preliminary appraisal reports up front. They have to smarten up the child on the other side right away. Owners can wait until later.

Ultimately, the one-theme approach presents a pristine purity of position. It will be made to sound like the experts are singing from the same score, singing the same song, talking the same talk, walking the same walk….like puppets on a string…like sleepwalkers, walking in a dream. A theme is rather like a dream, isn’t it? I will call this a “dream theme”.

Some dream themes don’t need appraisal reports. They don’t need facts. They don’t even need experts or team meetings.

They are ‘dreamed up’ by the lawyer, not generated, over time, by a team.

It has been put like this: “central to …the entire case, …, is determining a winning theme….for the condemning authority, the theme many times will be greed.... For the land owner, … destruction....”

These themes are primordial. They are emotional responses to the eminent domain taking and compensation process itself. They are visceral abstractions. They can make powerful images.

In the aggressive team approach, there is little room for warts on a dream theme.

A dream theme usually doesn’t come from differences between appraisal reports. Appraisal reports are too complex, too factual, and too dry. Dream themes often spring, full blown, from the head of the quarterback, as some Greek gods sprang from the head of Zeus.

There is another type of theme, drawn from closing argument theory. Yet they bear what you might call a “family resemblance” to team themes.

There should be a catchy soundbite. Good themes can be found in popular culture and history. Some examples that can be worked into an eminent domain case are: The end justifies the means. It’s impossible to bury the truth. Desperate men do desperate things. Garbage in, garbage out. Actions speak louder than words. He who pays the piper calls the tune. Already familiar slogans also work.

If some of these popular themes don’t seem all that good, let’s call them “clean themes”, to distinguish them “team themes” and “dream themes”.

Some themes may actually come from a client.

Wherever the theme comes from, regarding use of the theme by experts, the team approach requires selling your experts on your theme.