By: Dr. Ken Broda Bahm –
The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators. But the way that we come up with a theme is a little more mysterious. Some see theme creation as an act of laborious analysis, developed out of a painstaking accounting of all case issues, good and bad. Others see it as an act of divine inspiration, a ‘bolt from the blue’ that arrives unexplained from some part of our mind. Someplace in between these two perspectives, I’d like to suggest one handy tool that will not only help you develop a theme, but will also provide you with a broad working vocabulary to use when talking about your case.
The advice is to draw from the work of the rhetorician Richard Weaver, and identify the ‘god terms’ and ‘devil terms’ of your case. God terms represent all of the words and phrases that you embrace, words that have an “inherent potency” in identifying what you support. Writing in the fifties, Weaver used the examples of “progress” and “freedom” as words that we took as unquestionably good. As you might expect, ‘devil terms’ represent their mirror image, and Weaver’s prime example of “communist,” has been replaced in our time by “terrorist” as the ultimate devil term. Devil terms are not terms you avoid, but are rather terms that you embrace in describing the other side, and in helping to frame what your audience should be against. The celestial imagery behind the words is more than just a great way for you to remember the concept, but is instead an important part of its meaning. A god term means more than just a ‘good term’ but is instead a “rhetorical absolute,” something that carries a strong automatic meaning. That is, it isn’t good because we can think of an argument why it is good. Instead, it is good because it fits with at least one common worldview that our audience holds about what is good. Same for devil terms – they carry a natural unfavorable connotation.
A particular constellation of god terms and devil terms has the advantage of conveying not just an argument, but a worldview in which the argument makes sense. For that reason, it has become a useful tool for scholars who want to understand what makes a speaker effective. For example, one recent work (Zhang, 2010) looks at the clusters of god and devil terms in President Obama’s speech in Prague on a “nuclear-free world” (he meant weapons, but in light of the continuing crisis in Japan, the broader meaning might hold even greater appeal). The study looks at the ways Obama’s specific use of rhetoric, including both god (“common interest”) and devil (“fatalistic”) terms, helps to encourage a worldview focusing on symmetrical and cooperative relations between states.
Litigators similarly invite their audiences to not just accept an argumentative position, but to embrace a worldview. For plaintiffs, that is often a world within a broad frame of ethics where people ought to be protected from dishonesty, danger, and greed. For defendants, that is often a world where people take responsibility for their own decisions, within the more narrow limits of the law.
Practically, what I am suggesting is that for every case, you should create a simple two column chart that lays out your working vocabulary. To illustrate, let’s consider a hypothetical products liability defense. A company that makes aluminum baseball bats is sued by the parents of a young player who was injured by a ball hit off their bat. The Plaintiffs claim that the bat was engineered to hit harder than other bats, and the defense is that the bat met all standards, and that the injury could have been produced by a hit off of any bat. Defense also contends that injuries, even life threatening ones, are possible in baseball, and as with other sports, players can’t be guaranteed safety. The theme for the defense in this case is, “To blame this bat, you would have to blame all bats.” Laying out the god and devil terms for the defense in that case may work as follows:
|
God Terms |
Devil Terms |
| Law | Sympathy |
| Accepting sports risks | Denial of sports risks |
| Personal responsibility | Placing blame,
pointing fingers |
| Proven science | Assumptions
and guesswork |
| Direct causation | Loose association |
| Standards | Guarantees |
| Reasonably safe | Perfectly safe |
| Baseball | Not baseball |
Of course, based on the specific details of the particular case, many more can be added to both sides. Such a list serves as a starting point for a number of combinations:
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In your task, you need to be guided by law, not sympathy.
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What the law demands in this case is your focus on direct causation, not on a loose association.
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These bats were tested, using proven science, not the assumptions and guesswork that the Plaintiff relies on.
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Baseball is similar to other aspects of life: it is based on reasonable standards that promote safety, not on guarantees of perfect safety.
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Baseball is reasonably safe, but there are still some risks. And if you could design a game that was guaranteed to be perfectly safe, you could not call it “baseball.”
You could go on. The list of god and devil terms is a useful engine for brainstorming statements about your case. When you complete a table like this for your case, whether as a supplement or a stepping-stone to a theme, it has the advantage of providing you with not just a sentence, but a more holistic flexible vocabulary about your case. I recently used a table parallel to the one above but based in different litigation, with a group of current clients, and by the end of the call, they had all somewhat unconsciously adopted the terms, and started forming new sentences that drew from both columns — they were speaking the language. That is exactly what you need to have happen with your decision-makers. Having a jury remember a simple theme is good, but having them speaking to each other using the right words and concepts is golden. Induce your judges or arbitrators to rely on this language in their own opinions, and you are pretty close to being able to get into their minds.
Regardless of your decision-makers, the language you choose will help to establish a context and framework for evaluation – a universe of sorts. And, at the level of language at least, every universe needs a god and a devil.
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Related Posts:
Zhang, J. (2010). Exploring the Rhetoric of Public Diplomacy in the Mixed-Motive Situation: Using the Case of President Obama’s ‘Nuclear-Free World’ Speech in Prague Place Branding and Public Diplomacy, 6 (4), 287-299
Photo Credit, Vix_B, Flickr Creative Commons