An Image by Any Other Name

by Jeffrey J. Kroll

The ability to anticipate the critical issues that must be explained and simplified for the jury is essential to any successful trial lawyer. I have been fortunate as I have had the opportunity to lecture around the country to other lawyers on the use of themes and analogies to persuade jurors.

What is a theme? A theme is a phrase that brings a vision to jurors. Themes are the anchors around which the jurors visualize the case. You want and need your jurors to remember your theme. If you think about it, sound bites make for effective themes. A sound bite or a movie trailer grabs your attention. You see the clip. You want to see the movie. A trial theme is no different.

Your theme must be limited to a ten-word telegram that explains the case. No matter how complex your case is, your theme must be contained in ten words or less. It sounds pretty simple. It is not. We live in a world full of themes. We have theme parties, theme parks, theme songs and holiday themes. If you are invited to a theme party, you know exactly the reason for the celebration. Why is a theme important?

  1. You, and not opposing counsel, control the definition of the case, which can influence the dialogue in the jury room.
  2. We all want a simple solution; the master key, the secret formula… jurors are no different. Provide jurors with the solutions. Give them the master key with your theme.

When developing a theme, ask yourself these questions:

  • Is your theme based on justice or some technicality? Jurors want to do the right thing. A theme based on a technicality may not work.
  • Will the instructions at the end of the case coincide with your theme? “An improper lane change caused a life change” is a simple but effective theme.
  • Will the theme fit in with the values or beliefs of the jurors?
  • Will the theme cast your client in a role with which the jurors can identify?
  • Bottom line, what is the message that I want to transmit to the jury with my theme?

It is difficult to make jurors listen if you do not know what they are thinking, so trial lawyers need to try and influence the dialogue in the jury room. Allow the jurors to concentrate and absorb your theme. People remember things in threes, e.g., Blood, Sweat, and Tears; Earth, Wind and Fire, so it is effective to have a theme with three words in it. For example, in a trucking case, I argued the truck driver should have slowed down due to bad weather. The conditions should have forced him to slow down due to bad weather. The conditions were obvious, skidding was predictable and slowing down would have made the collision preventable.

By simply reading the newspaper or being “in-tune” with society, themes will leap out at you. Themes should be used in opening statements, throughout the trial with lay and expert witnesses and during closing arguments. Use themes as an effective way of communicating with jurors. By creating a case theme, you control the definition of the case. When you control the definition of the case, you control the dialogue in the jury room. When you control the dialogue in the jury room, a favorable result is likely.