Winning a case is just as much about telling the right story as it is about having all the facts. As experts in communication and psychology, a trial consulting firm can be an indispensable ally in telling the story within the framework of the law that will prompt a jury to award a favorable verdict.
Facts and evidence tell jurors the what of a case; the theme goes into the why and how. The theme should allow them to see the facts and evidence within a bigger picture and in a way that resonates with them.
Take, for example, a product liability case. The main legal theories to pursue would be negligence, breach of warranty, or strict liability. However, all this jargon can go over the heads of many jurors. But when framed in the context of holding corporations accountable, then that is something many can relate to, as they have probably had their own experiences with others not taking responsibility for their actions.
Consultants have three main guidelines for developing an effective theme.
It should be tailored for the audience. Litigators must craft a message that would speak to even to those who are skeptical of their client’s position. Consultants can help litigators test their themes on individuals whose backgrounds are similar to their potential jury through focus group discussions or mock trials, and then again during voir dire. It is important to note that if the theme proves ineffective during research, litigators need to be able to adapt quickly and develop a better theme based on the insights they have gleaned.
It should fit the various aspects of the case. This means that it should not only be congruent with the evidence and the legal theory, but it should also fit the various people associated with the case - the client, the attorney, the witnesses, and even the jury and opposing counsel. For example, a David vs. Goliath theme could work well for a mild-mannered client who was wrongfully terminated by a large corporation.
It should be easy to use and remember. A theme can often be summarized in one sentence using a concept that would be relatable to many.Litigators should be able to easily incorporate it in various stages of the trial, from voir dire, to opening statements, to witness testimony, to closing arguments.With enough repetition, the theme will stick with jurors and enable them to see the different aspects of the case from this perspective.
Litigators need to remember that jurors have no stakes in the case. It is up to them to get the jury invested in their client’s position, and it starts with developing the theme that will truly resonate with their core beliefs.
Many litigators today work with trial consulting firms to plan their legal strategy. One such firm is Dubin Research and Consulting (DRC) in New York, which has over 10 years of experience in working with many of the country’s top law firms. For more information, log on to DubinConsulting.com.
