Continuing in this thread on “10 Ways to Lose an MSPB Appeal”, I will talk a little about themes. I think this particular tip “having a theme to your case” will help you more than not having a theme will hurt you.
Think about it. The MSPBhears thousands of cases each year. Each administrative judge probably handles hundreds of cases, and dozens go to hearing for each judge. After a while, every case starts to sound the same to an Administrative Judge. After all they are human, too.
So make your case stand out. Use a theme.
A theme is the glue that holds your case together; it is what makes your audience identify with what is really going on in your case, beyond all the legalese, beyond all the arguments over facts and witnesses and evidence, a theme is what helps your audience make sense of it all. When you present a lot of unconnected facts to a Judge, it’s harder for them to piece it all together and understand what’s going on. After all, the Judge is only seeing your case for 2-3 days, while you’ve lived it for 2-3 years.
Here’s an example of a theme. In a recent case, my client was one of many employees allegedly involved in some very minor misconduct. But the Agency had egg on its proverbial face, and needed to punish someone. My client, the most senior of the group, was the one who was singled out – and her punishment was excessive. We used a theme of the “fall-guy” or”scape-goat” – someone had to take the fall for the alleged misconduct. I tested the theme at the oral reply, and I’m convinced it helped to mitigate the imposed discipline. How did I know? In reading the decision letter, the Deciding Official was using my presentation of the facts to explain his decision. As we go forward to the MSPB, I’ll tweak my theme a little; I prefer positive themes, but the example illustrates the potential power of a theme.
Use a theme properly and it will turn your appeal into a story; most people, including Judges, are more receptive to stories.