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- in Building the Persuasive Case
- by Stephen Gustitis
Creative thinking, or brainstorming, is a learned skill for many professionals. Especially those who accumulate large quantities of information, which must be organized into a unified combination of ideas with an eye toward achieving some objective, whether it be courtroom persuasion or marketing a new product or service. Brainstorming is approached with determination to find every useful idea, regardless of its value. Brainstorming is really hard work. The brainstormer must also remain optimistic and believe the process will indeed produce useful ideas.
Unfortunately, emphasis on legal analysis often prevents creative thinking by the criminal defense lawyer. Brainstorming is a form of creative thinking with two very important requirements. First, the goal of creative thinking is to develop as many hypotheses, theories, interpretations, inferences, explanations, and other ideas as possible. That is, the defense lawyer works to develop the maximum number of ideas explaining how the litigated event occurred. Second, the evaluation of these ideas must be done, but must be postponed or the lawyer’s evaluation will hinder the free thinking necessary for maximizing the number of ideas. Generate ideas first, evaluate the ideas later.
For the Bryan-College Station criminal defense attorney, the depth of thought produced by brainstorming will more likely result in truth by unearthing many ideas which were, at first, not apparent. As ideas are collected the new ideas generate thoughts of other new ideas and the thinking of the lawyer becomes deeper and closer to the truth. The important point is to creatively and actively think about the case, preferably for long periods of time. After an in-depth investigation, the criminal defense lawyer must brainstorm for the ideas which will organize the facts into a coherent, unified combination of facts and ideas necessary for building the persuasive case. The ideas may be possible theories of the case, interpretations, inferences, possible arguments, possible language to use, possible rebuttal to the opposing case, impeachment ideas, and any other ideas that will unite the case into the most plausible explanation (or story) for the jury.
Have fun with your creativity and allow your thinking to go deep.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.