Case Themes
Lawsuits are about conflict, and the specifics of each case—the who, what, where, and when of what happened—are unique to that conflict. By contrast, when jurors try to explain the Why of the case—why this damage occurred, or why we are here, today, in this courtroom—jurors tend to rely on more universal explanations. They use their own, intuitive grasp of human nature to explain what happened.
For example, to explain why an accident occurred, jurors sometimes express it simply as a result of the defendant’s greed, or disregard for safety. In a commercial case, they might decide in favor of the defendant on the grounds that the plaintiff simply failed to play by the rules. These explanations—which are typically short, simple, and “common sense”—are jurors’ way of making sense of the evidence. Their explanations become case themes: the narrative structures that jurors use to process information.
How we can help
The jury research is clear. First, case themes are critical to jurors’ (and judges’) understanding of any dispute. Second, if they are not provided with a coherent and persuasive case theme by the attorneys, then jurors and judges will supply a case theme of their own. They will fit the evidence into the simplest, most commonsensical narrative they can come up with.
An important role of the trial consultant is to help the client anticipate and shape these case themes in advance. To begin with, the case theme must fit the individual case and the unique set of facts. It then becomes a matter of considering what story the jury or judge will most likely use in order to make sense of what happened. In the simple formula, “This is a case of (blank),” how will they fill in that blank? What words or phrases are jurors themselves most likely to embrace, and repeat to themselves, as they problem-solve the evidence? What story structure can help jurors tie the case together? That narrative, and those words and phrases, deserve to be used in jury selection, articulated in opening statement, logically supported by the testimony of witnesses as well as the case documents, and then driven home at the end of the trial, during the closing argument.
We know from experience and research what makes case themes effective. Effective case themes are short. Effective case themes often use alliteration or other devices to make them easier to remember. Effective case themes are built on vivid, high-impact words and phrases that explain why one side ought to win and the other side ought to lose.
In our work with trial teams around the country, we make it a point to ensure that the evidence will be conveyed in a manner consistent with jurors’ own preference for themes. We help our clients develop case themes that are consistent with the evidence, easily remembered, and well delivered.
