After obtaining the facts, 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 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.
Unfortunately, the 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 to how the litigated event occurred. That is, the defense lawyer works to develop the maximum number of ideas. 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.
Creative thinking, or brainstorming, must be approached with determination to find every useful idea. The lawyer must also remain optimistic and believe this process will indeed produce useful ideas. The depth produced by brainstorming will more likely result in truth by unearthing many ideas which are at first not apparent to the defense lawyer. 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 idea here is to creatively and actively think about the case.
Next in this series on building the persuasive case is organizing the facts and ideas into a story that appeals to the belief system of the jury.