By Dr. Ken Broda Bahm:
I’ve shared on these virtual pages before that I am, at a slightly advanced age, learning to play guitar. From my early efforts I can report that, though I’ve advised on many patent cases, nothing I’ve encountered is as complicated as music theory for the guitar. I thought learning the chords would be, if not an easy task, at least a finite one. No chance: There are hundreds, with some bearing names like “F sharp diminished seventh, add six” (that’s actually one of the two chords in the band America’s “Horse with No Name”). Here’s something else I didn’t expect: When playing a chord, you’re often strumming across all six strings, but you want only some of those strings to vibrate, while the others should be muted with a light touch of a finger. While they’re complicated, at the root of the chords is the very simple idea that some notes sound nice together and some notes really don’t. I still cannot quite grasp why, but when playing a scale that I’ve never heard before, I will still know — immediately and without a doubt — when I play a wrong note that doesn’t belong in that scale. Dissonance stands out, consonance fits in.
That same principle applies to themes and other central messages used in discovery and trial, at least metaphorically. In your case story, you will have an overarching theme you’re trying to convey. Some facts (hopefully most) are going to fit with and support that theme. But in a reasonably complex case, at least a few facts won’t. It’s natural to think of your case as having “strengths” and “weaknesses,” because that frames it as an argument. But viewing your case as a thematic story, it makes more sense to think of it as having mostly consonant notes and a few dissonant notes. Effectively telling your story comes down to making sure the consonant notes are ringing out, while doing your best to mute the dissonant notes. In this post, I’ll share a couple of examples to illustrate what I am talking about.
This idea of consonance and dissonance builds on one very important fact about themes: Good themes aren’t just a sentence you say at the beginning of your opening statement. Instead, it is an overarching and recurring message that runs throughout your case, started in discovery and executed in opening, demonstratives, witness examination, and closing. In that regard, it is more similar to what a “theme” is in classical music: a recurring motif that evolves, reappears, and binds a complex piece together.
Let’s take a look at how a theme might address consonant and dissonant notes in two examples.
An Employment Defense
Theme: Smithco gave Ms. Jones chance after chance. She refused every one of them.
Consonant Facts:
Smithco gave Ms. Jones an employee improvement plan including three steps for handling future conflicts.
Ms. Jones got angry and walked out of an employee counseling session.
Complaints from co-workers and customers increased as Ms. Jones moved through the employee counseling process.
Dissonant Fact:
Two days before termination, Ms. Jones made a personal appeal to the HR director and CEO asking how she could keep her job.
Strategy (Amplifying the Consonant and Muting the Dissonant):
The dominant pattern was for Ms. Jones to receive counseling and then to not follow the company’s advice. Only after that pattern was set in stone and the result was inevitable did Ms. Jones make a futile effort to start over.
A Products Liability Plaintiff
Theme: This product has been a trap waiting for the right time, the right person, and the right circumstances.
Consonant Facts:
The product has a generally good safety record, with only a few reported injuries.
Some individual users are at greater risk than other users.
In rare circumstances, the product’s risks increase dramatically.
Dissonant Fact:
The plaintiff was an experienced user of the product, having used it many times without incident.
Strategy (Amplifying the Consonant and Muting the Dissonant):
The rarity of the circumstances just serves to increase the danger. Users, like the plaintiff, will not generally expect it and will not prepare for it.
The idea is just that asking what facts are consonant with your theme and what facts are dissonant, is another way of thinking about your case and building your central message. Just as with the chords, the goal is for the right notes to be ringing out, and that sometimes means using a light touch to mute the wrong notes.
For a baby guitar player, dissonant notes are definitely something to avoid. At advanced levels, though, some dissonance isn’t necessarily a bad thing. In fact, a note that doesn’t belong in a scale, but is sometimes put there anyway, is called a “blue note,” and it plays a big role in jazz and blues. Given that the stories you tell in trial are going to be complex and not perfect, there may be a role for a few blue notes in your case as well. But generally speaking, combining the facts of the case into a pleasing chord will mean doing what you can to amplify the right facts, the ones consonant with your themes, and to make sure the wrong ones, those that are dissonant with your message, don’t end up spoiling the tune.
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Other Posts on Theme Building:
- The Right Theme? Look It Up in the Moral Foundations Dictionary
- Aim Your Theme at the Worst Case
- Go for Sticky Theme Over Catchy Phrase
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Photo Credit: That is the author’s G Major played on his Traveler Guitar