By Dr. Ken Broda Bahm:
So your trial date has been kicked into indefinite future. Now, what do you do? Even as you reduce your time on the case, you still want to keep a foot in the door so that you are ready once things start moving again. Maybe it is time to take a fresh look at your overall trial strategy. Maybe it is time to take advantage of the lull by trying to clarify your message, and your one-line boiled down central theme for the case.
Creating a clear trial theme for your case calls on the powers of invention. We might be used to thinking of that word in a patent context, but “invention” is also one of the Five Canons of Rhetoric — Inventio, the ability to creatively generate the ideas and the content of your persuasion. Coming up with a theme is a personal task of invention, and rather than there being a definite formula for creating one, it is more likely to be in the “You’ll know it when you see and hear it” category. I believe that there are some ways to prompt this invention. In this post, I will share seven ways to spark your thinking on a trial theme.
1. Diagram It
Grab a piece of paper to scribble on and break down your message into parts. You can use the same parts of speech that your English teacher taught you when you learned to diagram a sentence. What is your subject? Is it your client, or do you want the main attention focused on the party on the other side? What is your verb? What is the action that you want your case story to center on? Is there an object that this action is pointing to? Are there meaningful adjectives and adverbs that condition it all? The construction of a theme can start with a brainstorm on what each of these components might be.
2. Make a Two-Column List
Another way to start fleshing out key words is to start putting language into categories. One effective technique I’ll often utilize is to draw a vertical line down the middle of the page, and list the positives (what we’re trying to promote) on one side, and the negatives (what we’re trying to avoid) on the other. For example, in a commercial case, perhaps what you’re trying to promote is “honesty,” and what you’re trying to avoid is “fraud.” I’ve referred to this using the rhetorical-theory label of “God and Devil terms” before. If you build a good long list, it will help you not just on the theme, but on the language that you weave into the rest of your case as well.
3. Give Yourself a Deadline
If you don’t have a looming trial date, then you may want to find an alternate way to create urgency. When I am writing recommendations after a mock trial, it is the report’s due date that creates that finish line. Creativity, as I’ve noted before, sometimes benefits from constraints. So rather than waiting for inspiration to strike, it is often better to make a timeline and say that, even if it isn’t perfect or final, we want to have a working theme by the end of the week.
4. Find Your Moral Foundation
A good case theme should be designed to appeal to your fact-finders’ values. And the more we research human values, the more we understand that we are dealing with a relatively finite set. Moral Foundations Theory shows that most value judgments boil down to five common values: care, fairness, loyalty, authority, and sanctity. By analyzing your case and your audience, you might select the value that you’re closest to upholding and then find language that resonates with that foundation.
5. Aim at the Worst Case
If you were to lose your case, how would you lose? Imagine that scenario, and then develop a theme that addresses and reduces that possibility. Instead of avoiding your weaknesses, it is better to focus on the worst case reaction that jurors could predictably end up with. The consumer product you’re defending could have a lot of great features, but if the most likely scenario for a loss is jurors feeling that you skimped on testing, then that is the issue that should be in the crosshairs of your theme.
6. Take a Step Away From It
If the inspiration for the right case message is not coming to you, sometimes it helps to take a step away from it. Some research supports the idea that sudden insights are real, and anything that helps you get into a relaxed and creative space is something that can help you find your case theme, whether that is listening to music, exercising, reading fiction, or something else. Disengage from the case for a while, and then come back to it with fresh eyes.
7. Make It Competitive
The last idea comes from my experience with a large trial team of more than a dozen attorneys, along with many paralegals, graphic designers, and trial technologies. On the eve of a three-month trial on a complex civil matter, we asked everyone involved in the case — not just the attorneys, but everyone — to submit one-paragraph summary of our side of the case, a three-minute explanation. Everyone voted on the anonymous entries and we picked a winner (let the record reflect that it was me) but we also discovered a plethora of great ideas that found their way into opening, witness testimony, closing and overall strategy.
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Other Posts on Themes:
- Go for Sticky Theme Over Catchy Phrase
- Appreciate the Nuance of a Theme
- Theme Building: Amplify the Consonance and Mute the Dissonance