Crime & Federalism

There are many ways to try a case. I've heard some lawyers referred to as "fact triers;" other lawyers have been referred to as "law triers." Both facts and the law have their place in trial, but I am persuaded the most important thing for a trial lawyer to master is energy.

I've seen odd things happen at trial. Sometimes great facts and good law yield humdrum results; less compelling facts and less supportive law does, from time to time, produce near miracles as results. What distinguished the two cases? Energy. The side with a hero, or, lacking a hero, able to identify the other side as the den of villains, stands a greater chance of winning.

Most trial lawyers spend too much time on the law and too much time developing facts of no particular significance, or they worry the facts that cut agains their client to the point of paralysis. My advice? Try themes, not facts. I can't say it works every time; sometimes, as Freud once famously observed, "a cigar is just a cigar," and there is nothing that can be done with the facts at your disposal.

But more often than not a good theme, a good story, a good archetype, can carry a case.

Where do good themes come from? I suspect the same sources as yield the stories and fables that all of us intuitively grasp -- fairy tales, legends, and the stuff of popular culture.

I've not yet begun any systematic "research" on this topic. I've just noticed how much energy matters at trial. We've create a separate category called Fairy Tales here at C & F to advance this discussion. I hope you will read and contribute.