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A version of this article first appeared in The Law Works.

Intellectual Property Cases Require Strong Themes

A Great Theme Helps Jurors See the Case Your Way

by Amy Singer, Ph.D.

The most able litigators know that you always need a good trial theme in order to effectively present and successfully win your case in court. This is particularly true when it comes to complex commercial cases such as intellectual property disputes.

A good theme summarizes the sometimes difficult to understand intellectual property case in a few words so the jurors can make sense of it. It frames the case so that jurors see it the way the attorney wants them to see it. And it provides jurors with an essential peg upon which they can hang their deliberations.

This means that the case will be discussed in terms favorable to the client. Furthermore, accentuating the theme throughout all aspects of the trial helps to establish the tone and rhythm of the case. As in tennis, it's like keeping the ball in the opponent's court for the entire match.

The trial theme binds the case together. It is a life preserver jurors can hold onto throughout all the trial's tempests and tumult. It helps jurors rationalize away all the case conflicts and justify the preferred viewpoint concerning the case facts.

The trial theme is essential for juries. You can't have the chicken without the egg, and you can't communicate in any sustained and meaningful way with jurors without a compelling theme.

Themes work well for intellectual property cases

Intellectual property disputes generally lend themselves well to strong themes. Stac Electronics, a relatively small computer software firm, recently beat mighty Microsoft Corporation in court over a patent infringement suit regarding disk compression technology. "David and Goliath" is the ideal theme for such a case - a small company battling for their rights against an industry giant. When presented in such a way, the jurors are predisposed to side with the plaintiff, because natural sympathies almost always are with the "little guy" in a fight.

"Thou shalt not steal" is another strong theme that often works well for many copyright, patent, trademark and similar infringement cases. A couple of years ago the humor columnist Art Buchwald, and Alain Bernham, another plaintiff, were awarded $900,000 in damages by Paramount Pictures, producer of "Coming to America." Mr. Buchwald claimed that he thought of and presented a story similar to "Coming to America" to Eddie Murphy four years prior to the movie's production.

Mr. Buchwald was able to argue successfully in court that his idea had been stolen and used by others to enrich themselves. When employed as the theme in such a case, "Thou shalt not steal" creates a sense of shared value between the jurors and the plaintiff. Everyone agrees that it is wrong to steal.

(Note: Dozens of valuable themes involving 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.)

A great trial theme locks the jury's attention to the case's pivotal point (e.g., Microsoft Corporation arrogantly appropriated for themselves the hard-won technology of a much smaller firm). It crystallizes complex legal concepts and arguments, while at the same time making the ideas they represent impossible to forget, and many times even impossible to deny.

Must use the right theme

While it is important to build your case around a basic theme, it is critical to use the right theme, i.e., a theme guaranteed to achieve the widest possible appeal with a jury. The problem is that too often, attorneys tend to rely on intuition, hunches, and guesswork to come up with the right themes for their cases.

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. The client deserves more than an educated guess concerning what the best theme for his or her case should be.

This means that the theme should be thoroughly tested prior to trial. The attorney who does not take this essential step often learns only after the jury has ruled against his or her client that the selected theme was wrong. Perhaps it did not support the case facts and was not considered credible by the jurors; it may have run counter to the jurors' beliefs and prejudices, or it was inappropriate in some other essential way.

Testing a theme to make sure that it will develop the widest possible appeal with jurors does not mean trying out various themes, ad hoc, on a random assembly of colleagues and office staff. 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 casually-organized theme-testing groups often can lead away from the best trial theme and tactics!

The bottom line is clear: to determine the ideal trial theme, the attorney must make sure to employ the most rigorous theme-testing methodology available - and not a random sampling of opinion.

Developing the right trial theme

The best way to determine the ideal 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.

Jury focus groups and jury simulations function like a Rorschach test, illuminating jurors' cognitive processes. They consist of abbreviated versions of the upcoming trial, as presented before a carefully selected sample of surrogate jurors. When professionally organized and evaluated, jury focus groups and jury simulations can reliably determine a true jury-validated trial theme, i.e., one that is guaranteed to develop the widest possible appeal with the jury.

Additionally, jury focus groups and jury simulations provide a wealth of other useful information, such as the most effective voir dire questions to ask, the best way to structure the opening statement and closing argument, how to handle direct and cross examinations, the likely impact of expert witness testimony, and so on.

"Enveloping" the theme

The trial 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. This means that he or she should be sure to incorporate the theme through every phase of the trial - voir dire, opening statement, direct examination, cross examination, and closing argument.

I term this process "enveloping" the theme. It is like packaging and sending a message (i.e., the theme) that the jurors are guaranteed to receive. By putting the theme to work in this manner, the attorney can strongly reinforce it in the jurors' minds throughout the entire trial. In doing so, the attorney can ensure that the trial theme will become, in effect, the primary wheel upon which the jurors spin their deliberations.

How important is this? Research shows that jurors deliberate in themes. And if it is your theme upon which the jurors focus and deliberate, you're going to be on your way to a successful verdict.

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