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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 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 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 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 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, 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:

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.

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.