When talking with trial teams, one question we sometimes hear is, “Do I really need to say those words – to really say my themes out loud?” And the answer is:
You really do need to say the themes – the same words over and over again – if you want them to be effective. Remember, the whole point of using themes is to help jurors understand and remember. Your knowing and understanding your themes isn’t good enough; the whole point of themes is to communicate with jurors so they understand your case story, understand how testimony from each witness fits into your case and remember your main points so they can argue your case in deliberations.
Opportunities During Trial to Use Key Case Themes
Once you’ve developed and honed your key themes and sub-themes (see our blog post on Developing Themes for tips), when should you use those themes? The following are excellent opportunities to use and reinforce your themes:
While time limitations are always an issue during attorney-conducted voir dire, start, to the extent possible, using your themes as early as voir dire, when you first come in contact with the jurors. This provides you with several opportunities to:
- Prime jurors to your themes;
- Test your themes with this panel and assess their reactions for deselection; and/or
- Refine your themes to align more closely with your panel’s sensibilities.
Depending on your court and judge, you may have a very limited time to help jurors understand what your case is about, and what it’s not about. What better time than your opening to preview your case story for jurors, using your key themes and sub-themes as markers to guide them through what the evidence will show? For example, you may want to remind them that This Case is about This Plaintiff, and what happened in his case. The plaintiff is going to want to emphasize a lot of irrelevant information about how “bad” this company is, but it will be important to ask what any of this information has to do with This Case and This Plaintiff.
Themes help jurors connect what a witness says with the overall case story. Prepare your witnesses by familiarizing them with the thematic framework of the case. This can help their testimony in several ways:
- Themes provide the “billboards” or main talking points of a witness’s particular testimony. These “headline” phrases encapsulate the essence of the message the witness wants to communicate.
- Understanding the case themes helps the witness understand his or her role in the overall story you are presenting at trial. Witnesses each have their own “themes” for their “piece of the puzzle” – the area they cover in their testimony – and it’s important for them to understand how their piece fits into the overall case.
- Themes become a “safe harbor” for witnesses during cross-examination. They can come back to these main points when being pressed hard by opposing counsel.
Another way you can “say your themes out loud” is through your graphics. Using your key themes as slide titles and headings not only helps jurors figure out that the slide information relates to a particular theme, it also offers another opportunity to visually reinforce your themes and sub-themes so jurors remember them.
The one time when themes are most vital is after you sit down for the last time – during jury deliberations. Our research over the years has shown that closing arguments have limited utility when it comes to persuading jurors; the true persuasion comes during deliberations, from fellow jurors.
- It is ultimately critical that the jurors who support your case also understand your themes. Then when one juror says, “They didn’t warn about every possible risk,” your jurors are able to respond, “Let’s talk about ‘What the Defendant Did.’”
- When another juror says, “This case is just typical of what goes on in corporate America,” you have prepared your jurors to respond, “We’re here to talk about ‘This Case, This Plaintiff.’”
Using well-developed themes that align with jurors’ stories will allow you to present your case so that jurors can understand and remember your story – but only if you use those themes; you have to say them out loud. In deliberations, the jurors who strongly support your case are your proxy; when they go to battle on your behalf, strong themes are their best ammunition. Let us help you develop your case story and key themes so you can better connect with the members of the jury, arming them with the critical thematic arguments during deliberations.
By: Barbara Hillmer, Ph.D. – Senior Consultant
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