Every Trial Argument Needs a Theme - Here's Why & How to Create One

Aug 28, 2023 4:19:42 PM by Kristi Harrington
Have a Theme

 

Last week, continuing through Robert Tyson’s Nuclear Verdicts: Defending Justice For All, the discussion focused on how to place a value on a life. One of the suggestions, “Get to Know the Decedent,” is useful in developing your theme for the case. Your case theme tells a larger tale; it “goes beyond the facts and witnesses to paint a story of what really matters.”1 As a trial attorney, presenting a strong, cohesive case is crucial to achieving a favorable outcome for your client. A theme is a unifying concept or message that ties together the evidence and arguments presented in your case. In this blog, we will explore the importance of counsel having a theme for their presentation. “Jurors are always going to develop a case story of ‘what happened here.’ Your job as an attorney is to give them the tools to understand, remember, and argue that your explanation of what occurred is the right one”.. the one most favorable to your client.2 

Here are 5 reasons to establish one or two strong themes in your case:3

A Theme...

1. Keeps Your Case Presentation Organized:

A theme provides a clear structure for organizing your case. By organizing your evidence and arguments around a central idea, you can make it easier for the jury to follow your presentation and understand the key points of your case. Tyson gives the example of using “home” as a theme, highlighting that a home is a different working environment than an office or a warehouse. Asking the jurors during Voir Dire to describe what a home meant to them and then using those words repeatedly throughout the trial is a successful strategy to reinforce your theme.4

2. Makes the Case More Memorable:

A well-crafted theme can make your case more memorable to the jury. By tying together the evidence and arguments in a way that resonates with the jurors, you can help them remember your case and the points you are trying to make. Think about your favorite movie: What is the theme? “For the audience, the theme provides a universal way to engage with the film’s specific subject matter. Strong themes are also what make a film stick with you long after the initial viewing.”5 That’s what you want in the jury room… jurors being engaged with your case presentation long after you’ve given your closing argument.

3. Helps the Jury Understand the Case...

A theme can help the jury understand the case and the issues at stake. By presenting the evidence and arguments in a way that is easy to understand and relates to the jurors' own experiences, you can help them connect with your case. Getting to know your jurors in voir dire and using that learned information to emphasize the points that will resonate with those jurors will ensure they will be more receptive to your arguments.

4. Adds Emotional Impact:

A theme can add emotional impact to your case. By framing your arguments and evidence in a way that resonates with the jurors' emotions, you can make a more compelling case and increase the likelihood of a favorable outcome for your client. “Your theme must incorporate bigger values, such as justice, country, home, peace, right and wrong. So even when your trial does not go exactly as you plan,” your theme will help you be successful.6 “Emotionally based themes often serve as anchors, creating impressions for the jury that linger until the time the verdict is decided.”7

5. Brings Focus to the Presentation:

A theme helps focus the presentation on the most important aspects of your case. By identifying the key points you want to make and structuring your presentation around them, you can make a more effective case and avoid getting sidetracked by irrelevant details. You should work in your theme with every witness and every piece of evidence.

Here are Some Suggestions on How to do This in Your Upcoming Trial:

  • Have a theme for damages: “In personal injury cases, a couple of common damage themes are ‘taking full responsibility’ and ‘making up for the harm caused.’ You should set the stage in Voir Dire for the jury to understand that their award of damages must equal and match the harm your client has suffered. Nothing more and nothing less.”8
  • Tie Evidence to Your Theme: “Explain to jurors how evidence relates to the key themes of your case so they can understand how it fits into your story. Every piece of evidence you introduce at trial has a purpose. You know what it is, but how are jurors supposed to know what that purpose is and how it relates to this case? How does it fit into your story?”9 Using visuals or other demonstratives to coordinate with your theme is another way to reinforce your message with the jury. 
  • Use Your Witnesses To Highlight Your Theme:  “Make sure your witnesses know the thematic framework of the case and what piece of the overall “puzzle” is theirs to deliver.”10 Thorough witness preparation is essential as counsel can help develop these themes into “short, repeatable phrases that can be quickly used on cross examination — e.g., we conducted a thorough investigation; we followed the rules. Counsel can aid their witnesses by also using the key themes in their questions and by reinforcing how the testimony relates to those themes.”11

“Every tool in a trial lawyer’s toolbox is designed to make sure the jury hears, understands, and remembers the information that is important to your case. A theme is one such tool because, like a great hook, it brings the jury back.”12

Having a theme for your presentation is essential to presenting a strong, cohesive case. A well-crafted theme can help organize your evidence and arguments, make your case more memorable, help the jury understand the case, add emotional impact, and focus the presentation on the most important aspects of your case. By incorporating a theme into your presentation, you can increase the likelihood of a favorable outcome for your client. “Ultimately, jurors want to do the right thing. You just need to give them the justification.”13  Your theme should be that justification.

 

Want more insights from First Court’s experience with jury verdicts? Check out our blog series on LinkedIn where we delve into Robert Tyson’s ten points one-by-one, drawing from the advice in his book while combining the thought leadership of prominent plaintiff and defense attorneys who have experienced both sides of a nuclear verdict. Keep an eye out for our upcoming Personalizing the Corporate Defendant: the sixth article in our series about addressing “nuclear verdicts.”

 

About the Author:

Kristi Harrington, is a trial consultant with First Court, Inc. As a retired circuit court judge, Kristi presided over hundreds of jury trials. Kristi is a Distinguished Visiting Professor and former Director of Advocacy at Charleston School of Law.

 

 

  1. Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), 101.
  2. How to best connect trial evidence and witness testimony to case themes. The National Law Review. (n.d.). Retrieved April 24, 2023, from https://www.natlawreview.com/article/how-to-best-connect-trial-evidence-and-witness-testimony-to-case-themes.
  3. Having trouble coming up with your own theme? Here are some great ideas from movie taglines: Million Dollar Jury Trial Case Themes You Can Steal | Trial Theater | Secrets for Courtroom Success. For the importance of using the Rule of Three in your theme: TRIAL THEMES AND THE RULE OF THREE | Plaintiff Trial Lawyer Tips.
  4. Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), 109.
  5. 10 classic movie themes with examples - 2023. MasterClass. (n.d.). Retrieved April 24, 2023, from https://www.masterclass.com/articles/10-classic-movie-themes-with-examples.
  6. Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), 111.
  7. Americanbar.org. (n.d.). Retrieved April 24, 2023, from https://www.americanbar.org/groups/litigation/committees/trial-practice/practice/2015/5-tips-for-engaging-opening-statements/#:~:text=Themes%20keep%20the%20jury%E2%80%99s%20attention%20and%20help%20them,combined%20with%20engaging%20stories%20can%20fight%20juror%20boredom.
  8. Neubauer & Associates, Inc. (n.d.). Advocate Magazine. Retrieved April 24, 2023, from https://www.advocatemagazine.com/article/2015-july/using-a-trial-theme-effectively-throughout-your-case-2.
  9. How to best connect trial evidence and witness testimony to case themes. The National Law Review. (n.d.). Retrieved April 24, 2023, from https://www.natlawreview.com/article/how-to-best-connect-trial-evidence-and-witness-testimony-to-case-themes.
  10. Ibid.
  11. Ibid.
  12. Softness, M. I. (2022, October 28). The importance of trial themes and how to use them before a jury. Daily Business Review. Retrieved April 24, 2023, from https://www.law.com/dailybusinessreview/2022/10/28/the-importance-of-trial-themes-and-how-to-use-them-before-a-jury/?slreturn=20230322170745.
  13. Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), 106.

Author

Kristi Harrington

Kristi Harrington is a trial consultant with First Court, Inc. As a retired circuit court judge, Kristi presided over hundreds of jury trials. Kristi is a Distinguished Visiting Professor and former Director of Advocacy at Charleston School of Law.

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