As you analyze the material that you have gathered for your argument at trial, develop short, fact-based statements of why persuasively — rather than legally — your client should prevail. These will be the themes of your case. The best themes are grounded in common sense and shared human experiences, such as fairness and honor, and should resonate emotionally with your listener.
A theme should be short, pithy, partisan, and memorable. You want your listener to repeat the theme when she is considering her decision. If she repeats “This is David taking on Goliath” or “When you try to cut corners, things get lost,” the theme itself starts to define the winner or at least the setting from which your listener sets out to resolve the issues.
In this way, a theme is like a silent ally in the decision-making process — the equivalent of a small voice whispering in your listener’s ear, not demanding an outcome but repeatedly restating the context of the deliberations. In jury deliberations, this can be particularly effective. If you can get one or more jurors repeating your theme, it is as if you have crept into deliberations — every advocate’s secret dream.
Make sure facts and themes are consistent. You would be amazed at the number of cases in which lawyers present a series of facts that, when considered collectively, do not hang together. Get in the habit of saying to yourself: “This is what I believed happened. And if X happened, then Y must be true.” Does Y appear to be true? If not, stop and rethink your factual explanation.
To develop a theme, first identify what you think happened. Then reduce the events to a short, memorable expression that accords with people’s common experience and grabs us emotionally.
Use themes consistent with your listeners’ beliefs. Like others seeking to make sense of new information, jurors use an analytical (generally deductive) framework to evaluate the evidence in a case. The jurors take a general proposition (something familiar) and reason to a specific conclusion (something new and potentially unfamiliar). The more your theme provides a contextual roadmap for this reasoning process, the more likely you are to succeed. The more familiar the route, the easier the travel.
In this context, using something “familiar” does not mean that you should abandon creative or innovative themes that can bring elements of surprise and pleasure to your argument. It does mean, however, that you should avoid cognitive dissonance.
For example, most people believe that parents seek to protect their children. A theme proposing that most parents would save themselves at the expense of a child is an example of a theme replete with cognitive dissonance. It is possible of course that the parents in your case indeed sacrificed their child for their own well-being, but the notion rubs at the core of our beliefs and tends to make us skeptical.
Your skill in developing and using theories and themes in your own arguments will be enhanced if you are alert to these elements in arguments presented by others. When listening to or reading an argument, ask yourself, “What was the theory of the argument? What themes were established?”
This exercise can be helpful not only in court but when reading an argument in a book or watching one in a movie. For example, in Shakespeare’s “Julius Caesar,” Brutus makes a public speech to an audience of Romans to persuade them that he was justified in slaying Caesar. At the beginning of this speech, Brutus introduces the theory of his argument and his principal theme:
Romans, countrymen, and lovers! Hear me for my cause. If there be any in this assembly, any dear friend of Caesar’s, to him I say, that Brutus’ love to Caesar was no less than his. If then that friend demand why Brutus rose against Caesar, this is my answer: Not that I loved Caesar less, but that I loved Rome more. Had you rather Caesar were living and die all slaves, than that Caesar were dead, to live all free men? As Caesar loved me, I weep for him; as he was fortunate, I rejoice at it; as he was valiant, I honor him; but, as he was ambitious, I slew him. There are tears for his love; joy for his fortune; honor for his valor; and death for his ambition. Who is here so base that would be a bondsman? If any speak; for him have I offended. Who is here so rude that he would not be a Roman? If any, speak; for him have I offended. I pause for a reply. (Act 3, Scene 2)
The fundamental reason propounded by Brutus for slaying Caesar was that, given Caesar’s ambition, all Romans would have become “slaves” if he had not been slain. This is the theory of his argument. A theme used to support the argument was Brutus’ love for Rome, expressed memorably in the line “Not that I loved Caesar less, but that I loved Rome more.”
Introduce your theme early in the case, and repeat it often. Deftly used, a theme can take on the characteristics of a conditioned emotional response (like Pavlov’s dog). If the plaintiff associates the defendant with corporate greed often enough, or the defendant associates the plaintiff with irresponsibility often enough, the conditioned association may become automatic and may happen without much, if any, cognitive activity on the part of the jurors. [See Donald E. Vinson, Jury Persuasion: Psychological Strategies and Trial Techniques p. 84 (1993, Aspen Law and Business).]
That said, beware of misusing the theme with witnesses. Although all forms of evidence should be presented with the theme in mind, a note of caution is in order with regard to witness testimony. Repeated use of a thematic phrase by your witnesses can sound orchestrated and insincere.
Vinson relates that, after one lengthy trial, “Jurors disclosed that they were tired of hearing the same theme repeated by one side’s witnesses. Whenever the words ‘risk of harm’ were uttered, one juror sitting in the front row, whose hands were hidden below the front wall of the jury box, waved her hands like a conductor whenever the same old tune appeared.”
You can certainly guess that the theme-prone lawyer did not know of this phenomenon until long after the verdict was returned. It is a lesson, nevertheless, from which you can benefit. Tout your theme early, communicate it clearly, but do not repeat it so often that it becomes cliché.
A strong theme should never be a liability. Invoked skillfully, with a sense of timing, it will work in your client’s favor throughout the trial and as the judge or jury decides on a verdict.