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Developing a Theme that Sells

By William S. Bailey

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,î 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.

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