You reviewed the probable cause and interviewed your new client after receiving the court-appointment order. Prior to meeting the client, perhaps, you received a call from their mother who shared some facts and issues related to her son’s case. Returning from the county jail your head is now muddled with facts, arguments, theories, and things to do. The client’s case is your responsibility now. From the jumble of information collected during intake, how do you set about finding the most powerful case for your new client? That is, finding the case that best appeals to the values of a judge, jury, or even prosecutor. How do you select the one best case from all the possible cases of which you could conceive? Creative thinking is the answer.

We were schooled in legal analysis. We were taught to obtain discovery, to investigate the facts and file motions to suppress when appropriate. We were encouraged to create a story. We’re taught to develop a case theory and support it with appropriate themes.  We create trial notebooks and other devices to keep organized. We know how to give an opening statement and a closing argument. Nevertheless, where do we find the best, the most persuasive case for our new client? How do we build a story which is internally consistent? How do we construct a theory integrating all the facts the fact-finder will believe, a theory uniting the entire case into the most plausible and persuasive explanation of the facts as possible? In short, we use creative thinking to help us think deeply.

Trial practice is largely a battle of ideas. The more ideas we generate the better chance we have of discovering the winner, the idea that strikes a responsive chord with judge or jury. Consequently, we need a system to generate ideas – a system of creative thinking. This is brainstorming. Brainstorming is a form of creative thinking with two very important components. First, the goal of brainstorming is to develop as many hypotheses, theories, interpretations, inferences, and explanations as possible. In other words, the defense lawyer strives to develop the maximum number of ideas explaining how the litigated event occurred. Second, the evaluation of those ideas must be postponed. Otherwise, the lawyer’s evaluation may hinder the free thinking necessary for maximizing the number of ideas. Generate ideas first, evaluate ideas later.

A thorough and complete factual investigation precedes the creative idea generating process of brainstorming. Before brainstorming we should understand every possible fact related to the event by reading every report, listening to every audio, watching every video, visiting the scene, obtaining relevant documents, consulting experts and writings on the subject matter, and obtaining information and standards like training manuals, and the like. Before finding an integrated theory explaining all the facts we must know all the facts. Factual material can be gathered from all sources within the economic limits of the case.

Brainstorming, then, generates the maximum number of ideas from which we later choose the most powerful and persuasive. We also need a reliable system to immediately record these thoughts. The failure to record them may cause ideas to be lost or forgotten. Writing down ideas can also help generate deeper thinking about our case. A spiral notebook with dividers is an old-school method of recording ideas. Computer applications designed for this purpose may work well, too. In fact, any device providing the lawyer with a place to immediately record ideas helps organize the creative process. And this creative process is the foundation for every phase of a trial from voir dire through closing argument. But again, the essential point concerns when to evaluate. Evaluation interferes with creativity. When we evaluate ideas too early we hinder the free thinking necessary to generate the maximum number of ideas. My wife calls it “X-ing her wow.” Consequently, postpone idea evaluation! Only after reaching the evaluation stage should you begin to narrow the case into the most plausible and the most powerful one possible.

Once we understand the facts, we can then think creatively about legal theories which provide a framework for the case. Brainstorm things to-do. Brainstorm what you believe will be the contested facts and issues. Generate ideas for follow-up investigation and research. How can you attack the opposing case? What are potential trial strategies, juror perspectives, and possible stories. Other topics include probable arguments, impeachment, feeling, emotion, and rhetorical devices. Finally, generate as many ideas possible regarding voir dire, opening statement, cross-examination, defense witnesses, cross-examination, closing argument, and even preserving error. Brainstorming is also an attitude. Approach it with optimism and the determination to find every useful idea possible. You’ve got to believe the process will work to produce the maximum number of ideas from which you later choose the most powerful and persuasive.

After accumulating your ideas, but before the story is finalized, the emphasis shifts to a rigorous evaluation, analysis, and narrowing of the case into the most plausible and powerful. Since facts may be subject to various interpretations, or may be contested, analysis is necessary. The State’s case should be analyzed to determine which issues are agreed upon and which issues are truly in controversy. The result is a list of contested issues which become the principle focus of the persuasive case. Theories, facts, interpretations, and arguments should be rigorously studied to determine their validity and strength. Theories must account for all the facts the jury will believe, or the theory will lack credibility. Discard weak interpretations and arguments. Out of the remaining material alternatives should be compared, and a selection made, of the most plausible and powerful. These are then integrated around a single theory of the case in a way appealing to the values of the judge, jury, or even prosecutor.

Finding the one best case for the client, from all the possible cases, is the job of a criminal defense attorney. Creative thinking is an essential tool toward this end. 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. Brainstorming is approached with determination to find every useful idea, regardless of its value. It’s really hard work, but also very satisfying. The brainstormer remains optimistic and believes the process will indeed produce useful ideas. Only then can they find and select the one best case. Have fun with your creativity.


(“Off the Back” featured in the “Voice For The Defense” June 2016)

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.

“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.


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