Dr. Noelle Nelson

A Strong Theme Helps Jury Rule for Your Client
(originally published in The Daily Journal, Verdicts & Settlements)

To jurors, the mass of facts, stream of witnesses and detailed presentation of evidence during trial can be overwhelming. Jurors seek clarity and order. Often, lawyers who provide jurors with such clarity prevail even when their cases appear weak in the eyes of other attorneys. Clarity and order can be accomplished easily by using a case theme that establishes the principle from which all facts, witnesses and evidence are organized and presented. A strong, consistent case theme, backed repeatedly by facts, is virtually unbeatable.

Besides a clear direction, your case theme must also provide the jury a reason to care about the case and, in particular, your client's view of the facts in the case. A persuasive case theme creates an emotion within the jurors that compels them to take action with their decision. Generating strong emotions within the jury has nothing to do with melodrama or exaggerating the victim's pain or the defendant's injustice.

Generally, case themes with a high moral ground have a strong emotional appeal. Jurors like to "do the right thing," and readily see their duty as upholding the parties who have "right" on their side. Whenever possible, elevate your theme to a higher cause. It is difficult to engage a jury emotionally, for example, by simply arguing the details of whose car hit whose in an automobile personal injury case.

You have better chances of winning a large award for your client if you raise the theme to a moral issue -- irresponsible drivers, for example, or the state of automobile safety--issues with which the jurors can connect emotionally. Presenting jurors with the opportunity to make their community safer for drivers or preventing many needless deaths gives them the chance to right a fundamental wrong. These are moving issues, persuasive issues, issues to which jurors can commit on a feeling level.

Of course, you can't just choose a case theme because it's emotionally compelling and then fit your facts to the theme. A case theme must emerge from the facts and be true to those facts throughout the case. This being said, there are a number of common underlying themes that fit many cases:

  1. Hero Versus Villain
  2. The Noble Quest
  3. Breaking away from a controlling, dominating or otherwise damaging Entity or Person

Hero Versus Villain

This theme is what underlies the classic "David versus Goliath" or "Human Need versus Corporate Greed" case themes common to much of plaintiff's work. The Hero Versus Villain theme only works when you have a clearly defined true Hero, and a Villain whose villainy is unmistakable. The error many lawyers make is to try to make a non-Hero into a Hero by further vilifying the Villain. This is much like the Ugly Stepsisters in Cinderella trying to squeeze their huge feet into a tiny glass slipper. Either the shoe fits or it doesn't.

Nobody is perfect, and that's not what jurors expect. Many perceived Lt. Col. Oliver North, for example, as a hero despite his many imperfections because he chose and stayed committed to heroic acts. If your Hero is less than perfect, acknowledge the imperfections to the jurors and then present those characteristics that support your client's heroism.

The Hero Versus Villain is not confined to plaintiffs. Defense can assert its own theme of Hero Versus Villain if the facts support a definition of plaintiff's client as Villain. If, for example, you have strong and sufficient facts that your defendant insurance company acted in good faith and according to industry standards and regulations, you can develop a theme of the insurance company acting for the common good versus the plaintiff looking for the proverbial "deep pocket." You can only do this, however, when there are sufficient facts to uphold your description of the plaintiff as Villain; otherwise, you will lose. Victim-bashing is poorly viewed by jurors.

The Noble Quest

The Noble Quest case theme is especially useful when it's imprudent to vilify the other side or your facts don't support the hero status of your client. The Noble Quest lifts the case to a higher level and sets the jurors' sights on a morally righteous cause (as you interpret it).

For example, attorney Gerry Spence successfully (a $52 million dollar verdict) pled on behalf of a small ice cream corporation against McDonald's, which Spence said had breached an oral contract. Spence's theme was "Let's put honor back in the handshake," meaning that a deal sealed by a handshake should be honored. This theme took the case out of the realm of who-did-what-to-whom minutiae and elevated it to a cause jurors could back with conviction.

A variation on the Noble Quest theme is the Personal Quest. For example, in a sexual harassment case, the defendant client was a manager whom a large engineering firm had hired to turn around a poorly run department. The manager had a dynamite reputation for getting the job done in remarkably little time. He also had a reputation for an unusual management style: he would put his arm around the shoulders of employees from time to time, use rough language to get his points across and suggest to employees they could always see him after hours for a drink if they wanted to talk about something that was bothering them. Such behavior led to the sexual harassment charges.

The case was successfully defended with the theme of a Personal Quest: The manager was so focused on turning the department around (his Personal Quest) that he indiscriminately put his arm around male and female employee shoulders as a football coach would, he used rough language regardless of the gender of the person he was addressing, and he made himself available for after-hours talks to whomever felt a need, male or female. If anything, the defense argued, in his focused intent to get the department back on track, the manager ignored gender and treated everyone alike, perhaps too aggressively and not appropriately for the workplace, but without attention to race, creed or gender.

The success of the Personal Quest theme is critically dependent on the veracity of the facts behind it. The plaintiff's lawyer had to show that the manager in the above case was the topnotch turnaround expert that he was presented to be, was 100% committed to his work, and his management style treated female and male employees equally. Otherwise, the Personal Quest theme would not have worked.

Breaking away from a controlling, dominating or otherwise damaging Entity or Person

This theme is very useful when you don't represent a hero or someone whose actions can be understood as coming from a noble cause. This theme, for example, underlies the "abuse excuse" that the defense used in the Menendez brothers' case. The brothers' murderous actions were defended on the basis that they were "breaking away" from the abuse of their parents. Defense counsel in the O.J. Simpson criminal trial also used a "breaking away" theme: the police were corrupt and O.J. Simpson was simply an innocent man trying to "break away" from a damaging Entity.

Plaintiff's counsel can also effectively use "breaking away." In business litigation, for example, a theme of "breaking away" from a controlling Entity was successfully used at trial to give a moral foundation to the client's contention of an unfair contract. Plaintiffs' counsel showed how the defendant prevented the plaintiffs from leaving the parent company and establishing their own business by distorting the contractual definitions of "ordinary and customary" payment of monies, thereby controlling and damaging the plaintiffs.

Most facts in cases fit one of these primary themes or a variation of a theme. However, when they don't, brainstorm until you do come up with a unique theme that fits.

Once you've determined the general underlying theme to your case, organize your main points. Next, weave your theme into your opening statement, presentation of witnesses and closing. As the case progresses, the jury will see a clear picture emerging--one that points to your interpretation of the facts.

© 2006 The Daily Journal Corporation. All rights reserved.


© 2016 Noelle Nelson All Rights Reserved