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Why Themes Matter : Appealing to Jurors’ Experiences, Common Sense and Desire for Fairness

WHY THEMES MATTER:

Appealing to Jurors’ Experiences,

Common Sense and Desire for Fairness

 

 

We all have themes running through our lives.  The most basic are the needs for love, personal happiness and a purpose in life.  We have all experienced difficulties in meeting those needs.  We know people who have struggled, and overcome obstacles, to try to obtain those needs.  Jurors are people, too, and have the same needs and struggles.

 

       Your Theme Must Resonate

In our cases, when we are representing our injured client in front of a jury, we must identify a theme that taps into the collective humanity of the jurors.  In today’s anti-lawsuit climate, it is harder than it was ten years ago … but it can still be done.  If a theme connects the client’s situation to the values jurors hold – and their needs and struggles – they will care about the client and they will be motivated to find in his or her favor. 

The aimless stringing together of various facts does not make a theme.  Repeating certain words does not make a theme.  A theme must resonate.

A strong theme will prompt the jurors to look for evidence that supports the theme and lead them to ignore evidence that doesn’t.  The right theme for your case will help jurors rationalize away all the case conflicts and justify the outcome you want.  Themes demonstrate to the jury why you should win, by:

●Simplifying facts and issues

●Resolving differences in the evidence

●Requiring that no credible person be disbelieved

●Globalizing the claim or defense

●Illustrating the clear logic of your arguments

●Undermining the opposition’s case

●Evoking noble human qualities of fairness, hard work, morality or personal responsibility

●Embracing the law

Trials are ultimately stories.  We, as trial lawyers, want to tell a story to the jury (through voir dire and opening and direct and cross and closing) that the jury will accept.  We want to motivate the jury to accept and embrace our story and decide in our favor.  The theory of the case is your legal framework. It is very important in the storytelling.

But, you must do more than simply tell a story.  You must make sure the jury knows what the case is about at its core and why your client should win.  You need a compelling theme.

Themes must be motivating.  They should compel jurors to interpret facts a particular way.  They should appeal to jurors’ experiences, common sense and concern for fairness.  A great theme should grab and sustain attention. It should point out the injustice in the case.  It tells the jury why you should win.

It is critical to have a theme and to convey that theme throughout the case.  The theme goes in through voir dire and in opening and through your witnesses, and during the cross of the defense witnesses…and in closing.  The closing argument is the time to tie all references to the theme together in a coherent whole.

The theme serves a vital role in meeting the jurors’ need to resolve conflicts in the evidence, a need that increases as the trial goes on.  Jurors are uncomfortable with the “buffet” approach in which counsel offers alternative theories without really narrowing them down.  Rather, jurors look for the one explanation that best reconciles the greatest number of discrepancies.  A theme must meet this need.

In most cases, it is impossible to find a “straight bright line” that will incorporate all the apparent contradictions in the case.  Ask yourself, “What will the jurors believe after hearing all the evidence?” and then conceive a theme that will account for all the evidence that they are likely to believe.

 

Some Sample Themes

There are many sources of themes:  adages, axioms, fairy tales, maxims, movie titles, slogans, and song titles.  Here are some random examples:

●Botched medical care because the doctor was too busy. 

●Haste makes waste. 

●Doctor didn’t do what she was paid to do.

● Accountability: the buck stops here.

●We should get what we paid for: Where’s the beef?

●Actions speak louder than words.

●The end justifies the means. 

●Good and bad, right and wrong.

●The universal right – Whistle blower case.

●David and Goliath.

●The defendant corporation put profits over people (in a products case).

●The plaintiff tries hard to earn a living but the defendant just sees her as a sex object (in an employment discrimination case).

●Doctors have the power of life and death over their patients, who trust them to do the right thing (in a medical negligence case).

  Here, for example, are some potential nursing home themes:

(a)       Head in the Sand:  the nursing home ignored warning signs, like prior falls, indicators of the patient’s weaknesses, and pretending everything was okay.

(b)       Betrayal of Trust:  Mary’s family trusted the nursing home to take care of Mary, and the nursing home failed to do so.

(c)       Acceptance of Responsibility:  The nursing home assumed responsibility for caring for John, failed to fulfill the responsibility, and now denies that it should be held responsible for its failure. 

(d)       Greed:  The nursing home put profits before people, money before good care.

The defense, of course, has its own themes.  Some frequently-seen standard defense arguments in nursing home cases are:

                        (a)       No Damages:  She was not going to live long … her quality of life was very poor … she didn’t really know what was going on around her.

                        (b)       Lousy Family:  Attack the family.  They didn’t come to Care Plan meetings.  They never visited. 

                        (c)       It was the Patient’s Fault:  She fell, we didn’t drop her.  She was a problem resident.  She was an attention-seeker.  She was an escape artist, always disconnecting the alarms.  She was combative.  She was non-compliant.  We can’t watch the residents every minute of the day. 

                        (d)       The Cause Defense:  She was going to die of something else anyway.  She had pressure sores, but she was a diabetic, what would you expect?  God himself couldn’t keep her, with all her problems, from developing pressure sores. 

                        (e)       Too Many Elderly:  This one is more subtle, but essentially asks the jury to forgive the nursing home because society – not just one nursing home – has to address the issue of the growing elderly population.

And, some others from a variety of types of cases:

(a)  Make a difference.

(b)  Breach of trust: they made a promise they did not keep.

(c)    You are the conscience of the community.

(d)  First, do no harm.

(e)  This is a doctor who knew too much and cared too little.

(f)    A moment of carelessness can cause a lifetime of misery.

(g)  A deal is a deal.

(h) You should get what you paid for.

(i)    The buck stops here (accountability).

(j)    Debts should be repaid, obligations should be honored.

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