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Continued... Page 9 > Developing a Theme that Sells

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 ìspinî 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, ìWhat a stupid thing to do, putting his hand on a rope attached to the augering machine. He should have seen that it was dangerous.î My partner turned this around by saying, ìThe 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.î This theme illustrates the Stern principle of neutralizing the opponent's argument and turning a ìlemon into lemonade.î

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, ìif the glove does not fit, you must acquite 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, ìWhen 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.

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