Fury Bailey - Personal Injury - Wrongful Death Attorneys

DEVELOPING A THEME THAT SELLS

By William S. Bailey

Fury Bailey

P.O. Box 20397

710 Tenth Avenue East

Seattle , WA 98102

(206) 726-6600

THE THEMES IN OUR LIVES

Every one of us has themes running through our lives, the most basic are the needs for love, personal happiness, and a purpose in life. All of us have various internal and external obstacles that intervene as barriers to fulfilling these news, barriers we must struggle to overcome. In representing another human being before a jury of his/her peers in a court of law, a trial lawyer must identify themes that tap both into the collective unconscious and conscious humanity of the jury. If the theme or themes fail to connect the client's situation to the values that the jurors hold near and dear, they will not care about the client and will not be motivated to find in his/her favor.

Too often, lawyers make the mistake of stringing together a series of facts in a case without a unifying theme. This is the equivalent of a headless horseman. Facts that are not conscientiously arranged in support of a theme will not persuade.

The purpose of this paper is to discuss what a theme is, why it is important in a trial, what shapes human perception of themes and how an attorney can go about identifying and building upon themes in an individual case.

Dr. Amy Singer has been a leading trial consultant over the past decade. Her consistent experience is that a strong theme is absolutely essential to courtroom success:

Indeed, theme development is the most basic and essential concept for all planned and structured communications. You can't have the chicken without the egg, and you can't communicate in any meaningful way – in court or out – without a compelling theme.

Singer, “Focusing On Jury Focus Group,” Trial Diplomacy Journal (1996) at p. 326.

Dr. Singer has assimilated voluminous jury research in her practice, concluding that jurors deliberate and rely upon themes in sorting out the evidence:

The trial theme provides essential meaning to the jurors and helps them organize and remember the case facts. A strong theme will prompt the jurors to look for evidence that supports the theme while ignoring evidence that doesn't. The right theme helps jurors rationalize away all the case conflicts and justified the desired case viewpoint.

Singer, supra at p. 326.

There is a danger beyond the simple failure to communicate when a lawyer fails to provide a theme or themes to the jury. If the lawyer does not provide one for them, they will do it for themselves. This may not agree with the client's perspective on the evidence. Hence, it is a critical part of a lawyer's job to give the jurors a “handle” for the evidence, to create a context.

WHAT IS A THEME?

Harkening back to our days in high school, most of us identify the word “theme” with the essays we had to write in English class, such as “How I spent my summer vacation.” Tristine Rainer describes a theme more accurately as:

The conceptual string that runs through and holds a work together; loosen it or break it, and the work tends to fall apart. Whereas story is the growth of character, theme is the development of an idea. Story provides the mythic and emotional skeleton . . . Theme provides conceptual coherence.

Rainer, “Your Life As A Story” (1997) at p. 212.

The theme is an invaluable tool for organizing the facts, helping the lawyer to determine what to leave in and what to leave out. A general problem among the trial bar is that of over inclusion, a problem that author Janet Malcolm describes as:

Fill[ing] plastic garbage bags with the confused jumble of things that have accreted over . . . days, months, years.

The goal of an attorney, just like that of an author or a filmmaker is to arrange a creative space with relatively few ideas, images, and feelings so that the audience will want to linger awhile among them rather than physically or mentally flee from a saturation bombing style presentation. With the theme as a guide, the attorney is protected from the danger of throwing the wrong facts out and keeping the wrong ones in.

The most powerful themes in any artistic or legal presentation involve general life topics that find resonance among ordinary human beings. An identifiable human dilemma of some sort must be at the heart of the story. Subtlety is at a premium – the theme is most effective when it is kept unseen, providing the structure upon which the details of the story are hung.

The most powerful themes are those which go beyond one idea and in fact have two opposing ideas locked in conflict, creating a dialectic. This can be seen in both the mundane, disposable elements of popular culture and great art:

•  The TV show Green Acres from the 1960's – City v. Country Living.

•  The book A Year In Provence – The clash between the British cultural values of the author and those of his French neighbors.

•  Othello – The conflict between the passions of jealously and love.

It is not the lesson or moral at the end of the story that involves the audience so much as the struggle between the two opposing points of view in the theme. Actual scenes or units of action which illustrate the theme are more engaging than narrative summaries of facts delivered by lawyers in courtroom recitations of evidence.

Typical kinds of dialectics that can be created in trials are as follows:

•  Product liability cases – The defendant corporation put profits over people.

•  Employment discrimination – The defendant doesn't get it – While the plaintiff tries hard to earn a living, he just sees her as a sex object.

•  Medical negligence – Physicians have the power of life and death over their patients. We trust them to do the right thing. The defendant abused that trust here by not taking the right steps.

WHAT SHAPES HUMAN PERCEPTION OF THEMES?

Philosophers, religious figures, psychologists, and artists, among others, have sought to understand the larger issues of human existence, focusing on the meaning of life and death as well as basic human interaction in everyday life. Aristotle looked at the relationship of art to the human soul, defining the function of tragedy in the theater to effect catharsis – drawing out the emotions of pity and fear in the audience. Aristotle viewed this as some form of soul therapy, that witnessing the tragic action caused spectators to harmlessly discharge their less than rational passions through vicarious suffering.

In order for any form of art to have an emotional impact, there has to be a degree of audience identification. In a play, film or book, the protagonist can be neither vicious nor perfect. Otherwise, the audience will not feel any degree of sympathy for the suffering of a character.

While he is seen as a legendary filmmaker who brought cinema to the peak of artistic expression, Ingmar Bergman was always acutely aware of the need to use themes that connect with his audience:

I do not intend my work to be solely for the benefit of myself or the few, but for the entertainment of the general public. The wishes of the public are imperative. . . . Each person has the right to understand a film as he sees it. Either he is attracted or repelled. A film is made to create reaction. If the audience does not react one way or the other, it is an indifferent work and worthless.

Four Screenplays of Ingmar Bergman (1960) pp. 18 – 19.

It is a very tricky business to try and reduce a fact pattern to the basic core theme which will communicate with all humanity. Different people perceive the same set of facts in different ways, depending upon their life's experiences and personalities. For example, trial lawyers must often try to communicate the theme that human beings are diminished by the loss of physical function and pain. While we all recognize that certain injuries almost invariably cause suffering, pain is a private experience that is invisible in its workings and is subjective in its effects as love. It is hard to talk about.

If jurors or their family or friends themselves have not had life experiences of pain or limitation, they may well not be able to appreciate the level of suffering by the plaintiff. The danger of this circumstance was stated over 200 years ago by Dr. Samuel Johnson:

It is not easy to make allowance for sensations in others, which we ourselves have not at the time. We must all have experienced how very differently we are affected by the complaints of our neighbors, when we are well and when we are ill. In full health, we can scarcely believe that they suffer much; so faint is the image of pain upon our imagination: When softened by sickness, we readily sympathize with the sufferings of others.

Boswell, “Life Of Samuel Johnson” (1791) at p. 164.

USE OF BASIC HUMAN NEEDS AS A GUIDE TO THEME SELECTION

In order to understand what themes resonate with human beings, an examination of the works of theoretical psychology is useful. For example, Abraham H. Maslow developed a holistic-dynamic view of human behavior. He saw an innate goodness in human beings whereby normality is the ideal state people seek to achieve through successful need gratification. Maslow theorized that human beings, when given safety, love, and respect, work better, perceive more efficiently, use intelligence more fully and think to correct conclusions more often.

Maslow distinguished between the basic underlying needs of love, safety, and respect and societal conventions of habits and manners:

We learn to eat three times a day, say “Thank you,” use forks and spoons, table and chair. We are forced to wear clothes shoes, to sleep in a bed at night, and to speak English. We eat cows and sheep but not dogs and cats. We keep clean, compete for grades, and yearn for money. And yet any and all of these powerful habits can be frustrated without hurt and occasionally even with positive benefit. Under certain circumstances, as on a canoe or camping trip, we acknowledge their extrinsic nature by dropping them all with a sigh of relief. But this can never be said for love, for safety or for respect.

Maslow, “The Instinctoid Nature Of Basic Needs,” Journal of Personality (1954) pp. 326 – 47.

Maslow's conclusions are grounded in basic common sense. The gratification of fundamental needs, like safety or love, is essential, their frustration and deprivation breeds sickness. Maslow points out an important potential avenue approach to jurors and other decision makers – to focus on the special status of our basic needs and the great misfortune that follows having the satisfaction of these needs taken away, all, or in part.

Maslow also spoke to the frailty of the human condition:

[Our] inner nature is a very delicate and subtle something rather than being strong and overpowering as it is in lower animals, who are never in any doubt about what they are, what they want, and what they do not want. The human needs for love, or for knowledge or for philosophy, are weak and feeble rather than unequivocal and unmistakable; they whisper rather than shout.

Maslow, “Motivation And Personality” (1954) pp. 348 – 49.

One of the classic works on the consequences of deprivation of basic human needs is Viktor E. Frankl's book Man's Search For Meaning . Dr. Frankl was an Austrian psychotherapist who was a longtime prisoner in German concentration camps during World War II. His entire family perished in these camps. Dr. Frankl came to realize what it was that kept people alive under these extreme, inhuman circumstances:

Hunger, humiliation, fear and deep anger and injustice are rendered tolerable by closely guarded images of beloved persons, by religion, by a grim sense of humor and even by glimpses of the healing beauties of nature – a tree or a sunset. But these moments of comfort do not establish the will to live unless they help the prisoner make larger sense out of his apparently senseless suffering. . . . In the concentration camp every circumstance conspires to make the prisoner lose his hold. All the familiar goals in life are snatched away. What alone remains is his last of human freedoms – the ability to choose one's attitude in a given set of circumstances.

Frankl, Man's Search For Meaning (1946) pp. 10 – 12 – from the preface by Dr. Gordon W. Allport.

Despite the difficulties of daily life in the concentration camps, Dr. Frankl's powers of observation were undiminished. What emerged in his mind as the core of human existence is the following description:

An unrelenting struggle for daily bread and for life itself, for one's own sake or for that of a good friend . . . There was neither a time nor desire to consider moral or ethical issues. Every man was controlled by one thought only: to keep himself alive for the family waiting for him at home and to save his friends.

(Frankl, supra at pp. 22 - 23.)

Though the prisoners dreamed most frequently of creature comforts such as food and warm baths, Frankl came to realize for the first time in his life what the core value was that kept him and the others alive:

For this first time in my life I saw the truth as it is set into song by so many poets, proclaimed as the final wisdom by so many thinkers. The truth – that love is the ultimate and the highest goal to which man can aspire. Then I grasped the meaning of the greatest secret that human poetry and human thought and belief have to impart: that salvation of man is through love and in love. I understood how a man who has nothing left in this world still may know bliss, be it only for a brief moment, in the contemplation of his beloved.

Frankl, supra at p. 57.

Frankl demonstrates that even in the every man for himself desperation of the concentration camps, thoughts of love for others was the ultimate survival skill. This tends to support Maslow's conclusion on the innate goodness of human beings. The challenge for the trial lawyer is how to tap into those core human values of the jury through appropriate theme selection. If you do not, you will not prevail.

“THERE BUT FOR THE GRACE OF GOD GO I” – FIGHTING CYNICISM

One of the great barriers to communication of a positive theme in this century is the growing cynicism and skepticism of our society. In a simpler time, obvious manipulative appeals to the emotions through traditional values could be successfully made. The late, great Professor Jack Sullivan of the University of Washington School of Law used to talk about his father's successful stem winding oratory in criminal cases before World War II:

Every defendant had a mother, no matter how horrible the crime and a mother that loved him dearly and stood by him.

This is now an artifact of a bygone era. No criminal defense lawyer would think of such an appeal now. The difference is juror cynicism and sophistication in the electronic age.

Attorneys need to come up with themes that tap into the unconscious humanity of the jury and overcome this almost inbred juror skepticism, “Why should I care about these people?” If your theme or themes fails to tell the jury why they should care about your client and identify with them as Aristotle described, then they will not usually come to this on their own.

This is where the primary need list of Maslow comes into play. If you can establish that your client is a human being with the same needs and wants as members of the jury, that will create a certain level of identification. The result of this identification is that the jury feels that what happened to the plaintiff could happen to them too:

“There but for the grace of God go I.”

In a sense, you are making the jury expand their sense of family to include people who are not blood relations. The tricky part of this is creating and using genuine emotion to convey the theme that is not slick or contrived. The conviction must come from the attorney himself/herself, conveying to the jury their own deepest feelings. Your personal conviction, tone of voice and words and must “affect” the jury. The power of the theme starts with the attorney's level of personal conviction.

AN APPEAL TO BASIC HUMANITY – A LESSON FROM SHAKESPEARE AND DARROW

It is often an uphill battle to connect the humanity of the jury to that of the client. Thinking of how to accomplish this goal, it is worthwhile looking at the power of words used by others.

At the time William Shakespeare wrote The Merchant Of Venice , anti-Semitism was well established in England , expressed in a variety of forms in popular entertainments of the day. At best, a Jew was seen in plays as comic relief, at worst, dehumanized to a money grubbing scoundrel. Shakespeare's lines for Shylock in The Merchant Of Venice break through the prejudices of his time and cause the audience to realize Shylock's humanity, that he is a person with the same wants, needs and qualities as the non-Jewish audience:

Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us do we not bleed? If you tickle us do we not laugh? If you poison us, do we not die?

One of the greatest trial lawyers of all time, Clarence Darrow, borrowed this same theme in his famous closing argument in the Sweet case in Detroit on May 12, 19 26. In that case, a mob of white citizens gathered outside of the house of Dr. Ossian Sweet, a highly educated African-American physician who had moved with his family into a lower white middle class neighborhood. When shots were fired during the racial unrest of a mob action outside the Sweet home, the 11 people in the Sweet house were immediately arrested and charged with first degree murder. In the subsequent trial, in city polarized by racial tension, Clarence Darrow pounded away at the common connection between all people, regardless of color, securing an acquittal against almost impossible odds:

Dr. Sweet scraped together his small earnings by his industry and put himself through college, and he scraped together his small earnings of $3,000 to buy that home because he wanted to kill somebody? It is silly to talk about it. He bought that home just as you buy yours, because he wanted a home to live in, to take his wife and to raise his family.

There is no difference between the love of a black man for his offspring and the love of a white. He and his wife have the same feeling of fatherly and motherly affection for their child as you gentlemen have for yours and that your father and mother had for you. They brought that home for that purpose; not to kill somebody. . . . They took guns there that in case of need they might fight, fight even to the death for their home, and for each other, for their people, for their race, for their rights under the Constitution and the laws under which all of us live.

Weinberg, “Attorney For The Damned” (1957) pp. 247 – 48.

STRUCTURE OF A THEME -- STERN'S PRINCIPLE OF THE WHOLE

Herbert J. Stern is a nationally known trial lawyer and teacher of trial techniques and strategy. His book, Trying Cases To Win , focuses on the importance of developing one central theme. In support of this point, he cites Abraham Lincoln as a master trial lawyer whose success was due to his genius of seeing the central theme in a case and aiming steadily at it from beginning to end. On this point, he quotes Mr. Lincoln's partner, William Herndon, as follows:

Mr. Lincoln saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play.

In advocating that the lawyer come up with one central theme, Mr. Stern correctly observes that human memory is set up to remember a central theme rather than individual details . The theme serves a vital role in meeting the jurors' need to resolve conflict in the evidence, a need which increases as the trial goes on. Jurors are uncomfortable with the “buffet” approach where counsel offers various alternative theories, without really narrowing it down. Rather, jurors are looking 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. Stern advises the lawyer to ask the question, “What will the jurors believe after hearing all of the evidence?” and then come up with a theme or theory that will take all the evidence into account that the jurors are likely to believe.

In this process, there are four possible approaches a lawyer can take to the discrepancies in the evidence:

•  Ignore

•  Acknowledge

•  Explain

•  Use

THEMES THAT TURN LEMONS INTO LEMONADE

Mr. Stern advocates the use of a theme that can turn lemons into lemonade when it comes to perceived inconsistencies and weaknesses in the facts. It is all a matter of the lawyer sitting down to put a “spin” on the facts which helps the jury to believe his/her client's version.

For example, my law partner once had a case in which our client was called over by his neighbor to help on a home handyman project, boring under the neighbor's driveway. The neighbor asked our client to put his hand on the rope which was attached to a motorized auger. Once the machine was started, his hand ended up getting pulled into the machine, causing serious injury. The defense approach to this was, “What a stupid thing to do, putting his hand on a rope attached to the augering machine. He should have seen that it was dangerous.” My partner turned this around by saying, “The plaintiff is the kind of person who is always willing to lend a helping hand to his neighbor. When his neighbor called for help, he came willingly and did as he was asked, trusting that his neighbor would not ask him to do something that was unsafe.” This theme illustrates the Stern principle of neutralizing the opponent's argument and turning a “lemon into lemonade.”

THE BEST THEMES EMBED A COMMAND OF WHAT THE JURY IS SUPPOSED TO DO

Though it proved somewhat controversial with the general public, Johnnie Cochran's defense in the O. J. Simpson murder trial was a masterful example of trial advocacy, particularly with the use of the theme. Mr. Cochran's famous mantra, “if the glove does not fit, you must acquit” embedded the command of what the jury was supposed to do in the theme. He also used a particular rhythm in a somewhat different beat from his regular speech to create a mood highlighting the theme.

In a later case involving medical malpractice, a trial consultant successfully adapted Mr. Cochran's use of theme with the embedded command. In that case, the facts involved a failure to diagnose a medical condition. The plaintiff's doctors did not run the necessary tests to rule out other possible diagnoses. The theme used throughout the trial was, “When in doubt, you must rule out.” The repetition of a theme such as this with a call to action throughout the trial at various strategic points increases it effectiveness. The theme has to be integrated into the story and used with visuals.

FOCUS GROUPS – A PLACE TO FIND YOUR THEME

Dr. Amy Singer strongly advocates that attorneys use focus group research to identify a theme that will appeal to the broadest possible cross-section of the population. There is a certain magic in finding the right theme, causing a fundamental shift in the perspective of the jurors:

It suddenly becomes clear that your point of view regarding the case dispute is the right one and the other side's is wrong.

Singer, supra at p. 326.

Most trial lawyers now routinely use focus groups in major cases, presenting a streamlined version of the facts to a group of citizens for their responses. After hearing evidence which summarizes the issues on both sides, the jurors first fill out a written questionnaire seeking their opinions on the issues in the case. Afterwards, they then deliberate as a group. Our firm videotapes these deliberations and then transcribes them for closer study. Invariably, members of the focus group will use themes in discussing the evidence with one another. These are often better than anything the lawyer can think of himself or herself. For this reason, focus groups are often most valuable when done early on in a case, as themes identified give direction to the lawyers as to what evidence should be sought in discovery.

CONCLUSION

The search for the right theme is one of the most critical tasks facing a trial lawyer in presenting a client's case to the jury. Human beings do not absorb facts in the abstract. The theme gives them necessary perspective for understanding the evidence. If you do not provide them with the right theme, then your opponent will or they will do it for themselves, making it likely that your side will not prevail. The most powerful themes appeal to a broad spectrum of humanity, and tie into the basic needs of people identified by Abraham Maslow and Viktor Frankl. Themes are not only the core ingredient for great literature, plays and cinema, but also winning cases.

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