Trial Themes That Move Juries: Building and Threading the Theory of the Case

Lynne Bernabei, Founding Partner | Bernabei & Kabat, PLLC

Lynne Bernabei is a founding partner of Bernabei & Kabat, PLLC in Washington, D.C., where she has litigated employment discrimination, civil rights, and whistleblower cases for more than thirty years. While the firm’s practice centers on state and federal courts in the Mid-Atlantic region, she has also handled cases in New York, California, Illinois, Pennsylvania, New Mexico, and Arizona.

• Education & Credentials

Ms. Bernabei earned her B.A., magna cum laude, from Harvard University in 1972 and her J.D., cum laude, from Harvard Law School in 1977. Following law school, she clerked for the Honorable William B. Bryant of the U.S. District Court for the District of Columbia from 1977 to 1978. She is admitted to practice in the District of Columbia and before the U.S. District Court for the District of Maryland.

• Recognition & Leadership

Ms. Bernabei has been selected for every edition of The Best Lawyers in America since 2006 and for Super Lawyers since 2007. Washingtonian magazine has named her one of the best attorneys in Washington, D.C. every year since 2002, and has also counted her among the city’s top 75 lawyers and top 100 most powerful women. In 2004, Legal Times named her one of the top 12 leading labor and employment litigators in Washington, D.C. She has appeared on “Sixty Minutes” and other national broadcasts and on National Public Radio, and she is regularly quoted in the New York Times, Washington Post, Wall Street Journal, and National Law Journal.

• Professional Involvement

Ms. Bernabei is a member of the College of Labor and Employment Lawyers and the National Employment Lawyers Association, serves on the editorial board of the Labor Law Journal, and is an arbitrator on the National Roster of the American Arbitration Association. She teaches continuing legal education courses for the American Bar Association and other legal groups, and her publications include the chapter “Closing Argument and Jury Instructions: Plaintiff’s Perspective” in the ABA’s Sexual Harassment and Retaliation in the Workplace handbook.

• Experience

Ms. Bernabei’s representative matters include the successful prosecution of a major sexual harassment and retaliation case on behalf of eleven employees against a large broadcaster — litigation that led to New York State and New York City laws protecting unpaid interns from workplace discrimination. She has represented employees and managers in the financial and mortgage finance industries who blew the whistle on corporate fraud, professors in tenure denial and termination cases across the country, corporate executives in age discrimination and whistleblower matters, and government officials and employees retaliated against for reporting illegal conduct.

Dominic J. Gianna, Shareholder, Vice President & Director | Aaron & Gianna, PLC

Dominic J. Gianna is a shareholder, vice president, and member of the board of directors of Aaron & Gianna, PLC in New Orleans, where he chairs the firm’s civil litigation practice. A trial lawyer for 36 years, he has tried more than 150 cases in state and federal courts across the United States, from both the plaintiff and the defense side, in matters spanning complex commercial litigation, product liability, toxic tort, employment law, medical malpractice, major construction disputes, and antitrust.

• Education & Credentials

Mr. Gianna received his B.S. in chemistry from Manhattan College, his M.A. in organic chemistry from the State University of New York at Buffalo in 1971, and his J.D. from Loyola University School of Law in 1974, where he was elected editor-in-chief of the Loyola Law Review. He is admitted in Louisiana and before the U.S. District Courts for the Eastern, Middle, and Western Districts of Louisiana and the Northern District of Texas, the U.S. Courts of Appeals for the Fifth and Tenth Circuits, and the Supreme Court of the United States. He is AV-rated by Martindale-Hubbell. Before entering the law, he worked as an organic chemist, professional athlete, and professional actor.

• Recognition & Leadership

Mr. Gianna received the Robert Keeton Award from the National Institute for Trial Advocacy (NITA), the American Bar Association’s teaching arm, as the best teacher of advocacy in America, and he has been listed in Louisiana Super Lawyers for civil litigation since 2008. He was selected — alongside President Bill Clinton and Justice Scalia — as a Blockbuster Speaker at the Defense Research Institute’s annual meeting, and he chaired the American Bar Association Section of Litigation Annual Meeting in 2001. He has served as District Judge pro tem by appointment of the Supreme Court of Louisiana and as court-appointed Special Master in complex matters, including Turner v. Murphy Oil, the Norplant class action litigation, and Scott v. American Tobacco Company.

• Professional Involvement

For 25 years, Mr. Gianna has served on NITA’s national faculty and as a NITA program director, leading interactive training programs in all 50 states, Canada, Mexico, England, Scotland, and Wales. He is Director of Trial Advocacy at LSU School of Law, principal faculty of the Professional Education Group and of the Louisiana Association of Defense Counsel Trial Academy, and a member of the New Orleans Bar Association, the Louisiana State Bar Association, the Federal Bar Association, and the International Society of Barristers. His books on advocacy and persuasion include Opening Statements 2d, Opening Statements: Winning in the Beginning by Winning the Beginning (with Lisa A. Marcy), Advocacy for the Ages (with Lisa A. Marcy), Winning Before Trial, and Reel Justice!

• Experience

Mr. Gianna’s trial practice spans complex commercial, product liability, toxic tort, employment, medical malpractice, construction, and antitrust matters for a client list that ranges from Fortune 500 companies to medium-sized national businesses and small local organizations. As principal faculty for the Professional
Education Group, he has delivered and led more than 400 lectures and seminars throughout the world, and his training programs — including “Reel Justice,” “Winning Before Trial,” “A Day on Trial,” and “Advocacy for the Ages and Sexes: Persuading Genders and Generations” — have changed the careers of thousands of trial lawyers.

SESSION 1 – From Case Theory to Provable Case – Pretrial Preparation | 1:00pm – 2:00pm

This session takes the case from intake through the eve of trial. Ms. Bernabei begins with the intake: knowing enough about the case to hypothesize legal theories and the facts needed to prove each claim — especially difficult in whistleblower cases, where the jurisdiction and the statutes and regulations in the technical field covered by the whistleblower’s reports drive the elements. She then covers the client consultation, pinning down facts and dates, and building the chronology that determines retaliation claims; collecting the facts that show whether legal claims exist and how strong they are, including other employees who raised similar claims and witnesses who support the client’s account; and testing every element against the jury instructions before filing, so each is supported in the complaint or stated upon information and belief. The session closes with building out the missing element — using “Rules of the Road” theories and deposition document lists to prove what defendants deny knowing — preparing the client not to give away the claims, and, if summary judgment is denied, working backward from the closing argument: keeping the trial story simple, admitting facts you cannot deny, and giving a reasonable explanation for bad facts so the jury believes your client.

BREAK | 2:00pm – 2:10pm

SESSION 2 – One Story. One Choice. One Moral: Threading a Trial Theme from Voir Dire to Closing | 2:10pm – 3:10pm

Jurors do not decide cases by assembling disconnected pieces of evidence. They decide who should win by looking at the stories presented to them. A powerful trial theme gives the story moral meaning. A theme is not a slogan pasted into separate trial parts: it is the case’s moral meaning, repeated with increasing proof and power. It is the truth jurors begin to believe in the beginning and feel compelled to act upon in the end. This presentation provides trial lawyers with the tools to carry that meaning from first question in voir dire to the final words of the closing argument – without sounding artificial, repetitive, or argumentative