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Continued... Page 6 > Developing a Theme that Sells

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 Iî ñ 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, ìWhy 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.

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