THEME ARTICLE 2/9/24, 9:43 PM

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A version of this article first appeared in TRIAL magazine.

Jury-Validated Trial Themes

How to Establish, Enhance, and Employ

Such Themes for Courtroom Success

by Amy Singer, Ph.D.

A jury trial is a dramatic debate waged by two star orators - attorney for the plaintiff (or prosecutor) versus
attorney for the defense. But far more depends on the outcome of this electrifying exchange than who takes
home the silver loving cup at the end of the evening. For criminal trials, the defendant's liberty, even his or
her life, can hang in the balance. For civil trials many thousands, even millions, of dollars may be awarded
from one party to another. Persuasion is the key - and the jury decides all.

Persuasion is a story-telling skill that depends on a clearly-defined and broadly-accepted theme to be

successful - "Give me liberty or give me death," "We have nothing to fear but fear itself," "Ask not what your
country can do for you but what you can do for your country." Strong themes such as these crystallize
complex concepts and arguments while at the same time making the ideas they represent impossible to
forget and many times even impossible to deny.

Despite their abundant other courtroom skills, many attorneys don't know how to develop strong themes for
their cases most effectively or put them to optimum use in the courtroom. They are further at a loss when it
comes to integrating the trial theme throughout all the important trial segments - voir dire, opening
statement, direct examination, cross examination, closing argument - and thus constantly reinforcing the
theme in a positive way in the mind of the jurors. Such attorneys are less effective trial advocates as a
result.

Few attorneys think thematically

It should come as no surprise that many attorneys find it difficult to determine and develop compelling trial
themes. Attorneys are not trained in law school to think thematically, nor are they encouraged to do so at
most law firms. They are taught instead to focus with laser intensity on the law in all of its sometimes mind-
numbing minutiae.

It would be absurd to suggest that any individual can hope to become an adequate lawyer without a
thorough understanding of the law. But too rigid an emphasis on strict "legalistic" thinking can become a
major problem at trial time. What's important to the attorney may prove to be of little interest to the jurors (the
old problem of lawyer perspective versus juror perspective). While the attorney may be arguing convincingly
regarding Critical Legal Issue 'A' the jurors may instead be concerned about critical non-legal issues 'B' or
'C' (or, for that matter, Issue 'Z,' which may not even show up on the attorney's radar screen).

The great humorist Will Rogers once said, "The minute you read something you can't understand, you can
be sure it was drawn up by a lawyer." A narrow "legal issues-only" viewpoint often makes it difficult for
attorneys to communicate with non-lawyers. As a result, many attorneys are unable to develop trial themes

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that jurors will find compelling. Their tendency is to focus case development primarily on complex or arcane
legal issues that jurors may neither understand nor care about.

For example, a large number of attorneys mistakenly believe "negligence" to be a workable theme upon
which to build a case. "Negligence" is not a theme, however, but rather a theory that attorneys try to prove in
court. More to the point, "negligence" is a dry legal concept that creates no emotional or psychological
valences with juries.

While "negligence" is a perfectly acceptable legal theory, "an ounce of prevention is worth a pound of cure"
is a theme to which everyday folks (jurors) can relate.

Another problem: some attorneys' trial themes, even though workable, may not resonate as strongly with
most juries as the attorneys would have preferred or as other more appropriate themes might have done.

Rhetoric requires themes

Remember high school composition class? The instructor tried repeatedly (probably valiantly but vainly) to
drum home the importance of theme development. The reason is simple. Theme development is the rock
upon which all writing and oratory are constructed. It is the most basic and essential concept for planned
and structured communications. You can't have the chicken without the egg, and you can't communicate in
any sustained and meaningful way without a theme.

Themes essential for juries

The idea of theme development is particularly fitting when it comes to all forms of persuasive
communications, including courtroom argument and debate. Attorneys should consider the following trilogy
of truths regarding trial theme development: 1) trial themes personalize case issues, 2) themes help jurors
form impressions, and 3) impressions win lawsuits.

Along these lines, over three decades of scientific jury research show that: 1) jurors deliberate in themes, 2)
the case theme is the primary mental organizer that helps jurors remember the facts, 3) a good theme
enables jurors to look for evidence that "fits" the story and to disregard evidence that does not "fit," and 4)
themes facilitate evidence comprehension and enable juries to reach pre-deliberation verdict decisions.

As these and other findings indicate, trial theme development is a subject that should merit the most intense
scrutiny, interest, and attention on the part of trial attorneys.

What makes a good trial theme?

A trial theme is a summary of the attorney's case, it's raison d'ê tre. It should be able to be expressed in a
few words or less. "Safety first, not last" (for accident cases), "David vs. Goliath1" (valuable for many
commercial cases), "paying for someone else's mistake" (for negligence cases) and - a Philip Corboy (Philip
H. Corboy, Corboy & Demetrio, Chicago) special - "destruction of a Van Gogh painting" (for damages) are
examples of such themes. These make excellent trial themes because they are easy to explain and easy to
understand.

Even better than themes of a few words are one-word themes - "indifference" (for medical malpractice and
accident cases), "accountability" (for liability cases), and "greed" (for commercial cases). Other popular one-
word themes include "integrity," "prejudice," "conspiracy," "arrogance," and "protection."

One-word themes act as laser beams of meaning and significance to illuminate and clarify the case and
make it understandable for the jurors. They help jurors focus on the key idea or concept essential to a
favorable disposition of the case (the case's pivotal point).

One-word themes bind the entire case together. They are like life rafts that jurors can hold onto throughout

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all the trial's tempests and tumult, complexity and confusion, bewilderment and brouhaha. They help jurors
rationalize away all the case conflicts and justify the desired point of view.

A good trial theme should also be memorable. "He couldn't hit a curve with an ironing board" is the way Hall
of Fame pitcher Bob Feller described retired NBA Hoop God Michael Jordan during Jordan's Spring 1994
tryout with the Chicago White Sox. Feller's colorful description is a great theme summary because it
describes Jordan's baseball-playing abilities in a few words - and because it's easy to remember.

Additionally, a good theme should be consistent with the evidence and the jurors' beliefs. And it should
create a sense of shared value between the attorney (and thus his or her client) and the jury.

How not to determine themes

Much misinformation exists among trial attorneys regarding how to determine the best trial theme most
effectively. Some believe that a random gathering of colleagues and support staff, organized to listen and
deliberate on a presentation of the case, is an adequate way to determine the best trial theme. This could
not be further from the truth. Such an arbitrary group's intuitive grasp of the case, vis-á-vis the most
appropriate trial theme, may differ substantially from how a jury will consider things.

Some attorneys learn to their chagrin that the recommendations of such ad hoc groups can lead away from
the best trial theme and strategy! Relying on any such group's intuitions concerning the best trial theme and
case strategy is a highly unreliable way to forecast jury attitudes. A theme developed in this haphazard
fashion often proves to be a shocking disappointment for the attorney at trial time - and a disaster for the
client.

Intuition

Intuition has its uses. The methodology by which novelists, artists, poets, and other creative individuals
develop themes for their work is usually intuitive. Intuition is also an indispensable forecasting technique for
persons occupied in many other colorful fields of endeavor, including sports handicapping, professional
gambling, prospecting for gold, and weight-guessing at carnivals.

However, theme development for the courtroom should not be based on intuition, instincts, or guesswork.
The attorney has a professional responsibility to determine - with as much certitude as possible - how the
jury will judge the merits of the case as presented. The trial theme is the heart of the case. A flawed theme
can kill the case. To determine the best trial theme, the attorney must make sure to employ the most
rigorous theme-testing methodology available - and not a random sampling of opinion.

Finding the ideal trial theme

The most effective way to determine the best trial theme is through jury focus groups and other jury
simulations. This parallels the test-marketing of products common in the commercial sector and of issues
and individuals in the political sector.

Major corporations never introduce their products without first thoroughly testing their appeal with
consumers. Political parties use opinion polls and primaries to test a candidate's appeal with the voters
before they sponsor any individual for public office. Similarly, the trial attorney should use jury focus groups
and jury simulations to test-market alternative trial themes and case strategies.

Not just any jury focus group or jury simulation will do the job. Some mock juries organized for attorneys
often prove to be no more reliable in predicting jury attitudes than the ad hoc groups attorneys organize.

What jury focus groups and jury simulations genuinely work? A textbook definition will be helpful:

Meaningful results in determining a trial theme that will gain the widest possible level of acceptance (i.e., the
theme that is most consistent with the jury members' thought processes) can only be achieved by carefully

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constructed and controlled social science experiments using scientifically valid jury focus groups and jury
simulations; and precise theme-choice recommendations based on statistical and other sophisticated
analyses of the results of these experiments.

This definition is extremely precise - and for good reason. Each of its deliberate qualifiers and conditions is
needed to describe the type of surrogate jury research that can predict jury attitudes and behavior with
reliability. Take a look:

Meaningful results - Attorneys are assured that the procedures outlined - i.e., scientifically valid jury focus
groups and jury simulations - can determine the best possible case theme with real certitude. The theme
recommendation is validated by the scientific methodology employed.

Widest possible level of acceptance - Determining the best trial theme for the typical red light, green light-
type case is usually not too difficult. Finding themes with the broadest possible appeal for more complex
cases is a far more demanding task.

Scientifically valid - Anyone can organize a meeting of colleagues and friends to try out various trial themes
and then make a recommendation on what he or she deems to be the most popular theme. But this is not
valid scientific methodology. Any theme recommendation developed in this manner will have no quantifiable
significance regarding the appeal it may have with a jury. (It may have none.)

Statistical and other sophisticated analyses - Even if the surrogate jury is properly organized and
administered, all comments and opinions expressed by the surrogate jurors must be scientifically evaluated
and interpreted to achieve meaning. A lawyer is professionally able to interpret the law. But it is the social
scientist (generally a psychologist specializing in jury research) who is needed to professionally analyze and
interpret the deliberations of subjects in controlled psychological studies. These include jury focus groups
and jury simulations.

Only jury focus groups and jury simulations that are organized and evaluated on a scientific basis can
reliably determine a true jury-validated theme - i.e., one that is guaranteed to develop the widest possible
appeal with the jury. An ad hoc group cannot. Maybe such a group will come up with the right theme - and
maybe it won't. The attorney won't know for sure until the verdict is read.

Litigation Research

The organization of jury focus groups and jury simulations is not an art - it is a science. This field of science
is known as Litigation Research. It employs actuarial methods based on experimental design2. Its product is
the statistical analysis and interpretation of systematically collected scientific data concerning probable jury
responses to selected stimuli3. Nothing is intuited.

Litigation research is concerned with juror predispositions, beliefs, opinions, and attitudes4. The findings that
derive from this branch of psychology are not foolproof. However, they do significantly increase the
probability of developing jury-validated trial themes and of impaneling the best possible jury for a particular
case.

The product of Litigation Research involves scientific results and findings which often are presented as a
series of "if-then" statements - "if this theme is used, then jury response 'X' will occur"; "if this evidence is
presented, then 'Y' will occur." Such information can be invaluable in planning courtroom strategy. Much of
this information derives from surrogate jury research. How are these research projects organized and what
can they achieve?

Surrogate juries

Jury focus groups and jury simulations function like a Rorschach test, illuminating jurors' cognitive
processes. They consist of abbreviated versions of an upcoming trial presented before a carefully selected

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sample of surrogate jurors. The deliberations of these jurors are professionally evaluated and interpreted to
determine jury attitudes concerning the case and all of its key aspects. This includes the basic theme of the
case and its presentation.

Formats for surrogate juries vary considerably. The choice of format depends on such factors as the
experimental design to be used, the specific issues to be determined, the type and complexity of the case,
and so on. Each surrogate jury conducted is always "case specific."

Surrogate juries usually are conducted in the venue where the trial will take place. This aids in recruiting
surrogate jurors whose values and beliefs will match the jury pool's. The number of surrogate jurors
generally will be the same as that of the actual jury.

In most cases, two separate series of jury simulations are conducted. (A typical series involves a
presentation that is repeated with different groups of surrogate jurors at least three to 10 times. As in any
other scientific test, this repetition is essential to ensure the validity of the results.) The first series of jury
simulations takes place at least 90 days before trial or before discovery is complete. It is organized to
determine the issues of importance for potential jurors, along with the best trial theme and strategy. The
second series of jury simulations is performed again shortly before the trial is to take place. It helps
determine how jurors will perceive the facts, evidence, and arguments once discovery is completed.

The specifics concerning how surrogate juries are organized and evaluated are too technical to be of
interest to anyone but psychologists and other social scientists. What is of interest is the uncanny amount of
precise information concerning juror attitudes that jury simulations and jury focus groups can uncover
regarding a particular case.

Just as a crystal ball into the minds of jurors, jury focus groups and jury simulations can reliably indicate
what jurors will think and feel about the case; what "personality types" will perceive the case facts favorably
(and unfavorably); what are the relevant attitudes that may predispose jurors to be less than neutral; what
issues jurors will consider most important; what trial theme and case strategy will have the most appeal;
what voir dire questions will work best; what information jurors will need to hear (and even when they want
that information presented); what areas of the case are subject to faulty perceptions by the jurors; what are
the problem areas of the case; what case issues and facts are likely to be misunderstood; what is the
assessment of damages; and what questions, if left unanswered, will stay on the jurors' minds...and possibly
destroy the case.

Once armed with this invaluable data, the attorney can determine a winning trial theme and presentation
strategy. He or she learns how to answer every question and address every issue that the jury simulations
show are critical to a favorable verdict. It's like a poker player knowing in advance what his hand will be -
and exactly what cards each other player will be dealt!

Who "owns" the theme?

A psychological principle known as "Attribution" theory predicts how individuals will place blame. It is a key
determinant regarding the method by which jurors reach decisions in court cases. Attribution theory posits
that blame devolves to a decision between "person" versus "situation." Did the patient die due to the fault of
the doctor (person)? Or did death result because the patient was very sick (situation)? Did the plane fall out
of the sky because of pilot error (person)? Or because of weather conditions (situation)?

Certain linguistic signals "cue" specific juror responses regarding how they place blame. One type of signal
cues a blame response towards the "person"; a different signal cues a blame response towards the
"situation." Through our firm's research we have discovered that these special linguistic cues are "owned"
either by the plaintiff or the defendant. (We have termed this status "Ownership" theory.) Recognizing such
cues and knowing how to put them to use can make the difference between success and failure in the
courtroom. The following example will help demonstrate the point.

In the winter of 1993 I worked on a product liability case with Buddy Payne (R.W. Payne Jr., Spence, Payne,

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Masington & Needle, Miami) concerning a vehicle roll-over. When we first tested the case, we found that the
surrogate jurors spent much of their time speculating on how the driver probably "over-corrected" his
steering, thus resulting in the roll-over. Who owns "over-correction?" The driver does...so the jurors blamed
him for the incident.

We recast the deliberations by introducing two new terms - "steer-ability" and "steer-worthiness." Who
"owns" these terms? "Steer-worthiness" clearly "belongs" to the vehicle manufacturer...and guess whom the
jurors now blamed for the incident? The manufacturer, of course.

We repeatedly tested "steer-ability" and found that this possible trial theme achieved broad acceptance with
different groups of surrogate jurors. We proceeded to trial and won the case handily for the plaintiff. The
vehicle manufacturer lost because: 1) it "owned" the "steer-ability" theme, and 2) we made sure to hang the
theme on them whenever we could during the trial.

It is important to understand the power of certain words and the responses they can "fire off" in jurors. For
example, the attorney representing the plaintiff in a medical malpractice case should avoid use of the word
"disease" because it is "owned" by the client. Safer words to use are "treatment" or "solution." "Why did the
doctor not come up with the right treatment?" "Why was the right solution not developed?"

Is the proposed trial theme "owned" by the plaintiff or the defendant? Who benefits and who loses due to its
use? Any determinations concerning what trial theme to employ should be made with these key
considerations in mind.

Using themes effectively in the courtroom

The theme is an invaluable tool the attorney can use to build the strongest case possible. To do so, the
attorney must understand how to maximize use of the theme in court. One of the best ways is by
"enveloping" the theme so it is integrated into every aspect of the attorney's presentation - voir dire, opening
statement, direct examination, cross examination, and closing argument.

This strategy of "enveloping" the trial theme is like packaging and sending a message (i.e., the theme) that
the jurors are guaranteed to receive. To demonstrate, consider the following example: A negligence case
has been brought against a defendant - a large hotel. Jury testing indicates "prevention" to be the ideal
theme for the case. The attorney must "envelope" the theme throughout all the key segments of the trial:

Voir dire - "Do you believe it's important to prevent bad things from happening to people?" "What do you
think about companies that don't do anything to prevent avoidable injuries from taking place on their
properties?"

Opening Statement - "The basic issue in this case is simply, 'Could the defendant have prevented the injury
from occurring to my client?' Why is prevention apparently not an important concept to them?"

Direct Examination - "As a major hotel with over $--- million in assets, couldn't they have been more
concerned to prevent people from being hurt when on on their premises? What steps could they have taken
to prevent this type of horrible injury from paralyzing my client?"

Cross Examination - "Please look at this chart showing the many injuries that have taken place at your hotel
since 19--. Can you tell us how many of these injuries could have been prevented if proper safety measures
had been implemented?"

Closing Argument - "We've been here for six days but not once has the defendant described a single step it
has taken to prevent injuries from taking place, like the one that has condemned my client to a wheelchair
for the rest of his life."

A great trial theme is like a Swiss Army knife - it can be used in 1,001 different ways to win the case! And it
can be used in conjunction with many powerful rhetorical techniques:

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Analogies & Metaphors - If members of a jury don't understand what you are talking about, they probably will
not find in your favor. That's why the use of analogies and metaphors are so important. If the theme is your
trial story, then analogies and metaphors are the language you must use to tell that story so jurors will
understand it. "The defendant's failure to prevent this injury from occurring is like failing to move a pair of
dangerous children's roller skates from the middle of the cellar steps."

Rhetorical Questions - The use of rhetorical questions will produce more favorable results with juries than
statements where strong arguments are employed. (Studies show that introducing a counter-attitudinal
message with questions leads to a more intensive processing of the message's content than introducing it
with statements.) Use of rhetorical questions is predicted to increase award, diffuse more responsibility on
the decision-makers (jurors), and make the presentation more interesting. "Is the defendant simply too
arrogant to worry about preventing this type of injury from taking place?"

Expectancy Statements - Framing statements to the jury by saying, "You can expect us to show that..." is an
excellent way to get the jurors to anticipate (and wait for) trial theme messages and other key information
you plan to introduce later. In psychology, this is termed gaining the "selective attention" of the subjects. This
means that jurors will unconsciously look for information that supports the case argument and disregard
information that doesn't. You can expect us to show that the defendant could have prevented this injury from
happening - but failed to do so."

Visual Aids - Jurors take an essential first step toward forming opinions through a memory process called
encoding. Attorneys must help jurors encode with pictures and visual aids. All demonstrative evidence
should support and enhance case themes. Colors that evoke associations with feelings or symbols - e.g.,
red for stop, green for go - should be used. For example, a PREVENTABLE ACCIDENTS chart that lists in
red all preventable injuries that have taken place at the hotel will help show jurors what the attorney has
been telling them throughout the trial.

Parallelism - One good way to get jurors to pay closer attention to what you have to say is by parallel
structure in language. "The injury to my client was preventable because it was avoidable. It was avoidable
because it was foreseeable." (This example also illustrates the power and energy of rhythmic language.)

Rule of Three - Studies in communications research show that an idea must be repeated at least three times
for it to be remembered. "Prevention! Prevention! Prevention! If only the defendant had given some thought
to this basic concept, none of us would have to be here today."

Montgomery Variable - Bob Montgomery (Robert M. Montgomery Jr., Montgomery & Larmoyeux, West Palm
Beach) is able to turn a juror's natural fear of being injured (as the plaintiff) into a righteous anger. He takes
the jurors' "fear" energy and turns it into "anger" energy. (Such replacement is essential. Emotional voids
inside the psyche must - and will - be filled.) "If the defendant had tried to prevent this type of injury from
occurring, my client would be able to walk today. What if it were you - and not my client - who could no
longer walk again? How would you feel...knowing your injury could have been easily prevented?"

Use of Double-Binds - Characterizing the opposition in "either-or" terms that are both negative is an effective
way to minimize juror sympathy for the opposition. "Did the defendant fail to prevent this injury because they
were negligent...or because they were arrogant and just didn't care about preventing injuries to their
guests?"

It is important to understand that jurors use an idiosyncratic approach to handle information from a case.
Repetition, key phrases, analogies, visuals, tone of voice, and other non-evidentiary factors have an
extremely powerful effect on each juror's subconscious and the way he or she processes information and
reaches decisions.

By constantly "enveloping" the theme throughout every point of the trial, the attorney is able to acutely orient
the viewpoints of the individual jurors to the case as he or she wants them to see it. The theme becomes the
jurors' primary trial "road map" - showing them the best route to take to a good verdict decision.

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However, the trial theme cannot guide the jurors to a successful verdict if it is the wrong theme. Indeed,
repeated mentions and use of the wrong theme throughout the trial will likely irritate the jurors and turn them
off.

This is why the trial theme must be thoroughly tested through jury simulations before its actual use in court.
If this vital step is not taken, there's no

reliable way to tell whether jurors will react positively or negatively to the proposed trial theme. It's a roll of
the dice either way.

******

Footnotes

1 Dozens of valuable themes involving pain, riches, wisdom, good versus evil, and so on can be found in the
Bible. Along this line, the "Seven Deadly Sins" make powerful themes for commercial cases.

2 Experimental design is the plan for a scientific study in which all the variables are controlled except for the
one of interest (e.g., the best trial theme). It is a scientific "frame" put around a piece of the physical world
(e.g., the jury pool) to observe it in detail and to test the effect(s) of imposing a change (a variable) on it.

3 The extent of trial "stimuli" presented to surrogate jurors depends on the type of jury simulation to be
conducted. Such stimuli include: copies of the jury instructions, verdict forms (different versions of this form
are evaluated to discover which will prove most advantageous for a particular case), voir dire questions; the
fact pattern; any pictures, graphs, and other presentation materials that will be used in court; "Day-in-the-life"
videos (if applicable); relevant dispositions; plus opening statements and closing arguments.

4 Studies show that jurors are most influenced by personal biases, secondarily by legally inadmissible
information acquired during the trial, and only third by legally admissible evidence.

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