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A. CREATING AND ADAPTING THEMES
It is axiomatic that counsel should develop a theme during voir dire examination, carry it through opening statement, expound upon it in the evidence and use the fully developed theme as a cornerstone of summation. This paper will discuss how to effectively develop case specific themes, adapt standard themes, structure powerful themes, identify and test the best themes for your case and communicate the themes to the jury at each stage of the trial.
The utilization of one or more themes is an effective method of organizing and presenting the closing argument. Themes should be selected at the initial stages of case preparation. They can then be implemented throughout the trial–including voir dire, the opening statement, the trial of the case itself, and the closing argument. The theme gives the jury a title, a goal and a purpose within a vital framework for deliberations.
Thus, when structuring the summation, plaintiff’s counsel should focus on those issues which will have maximum impact on the jury. Time is very precious during the closing argument and should not be spent on superficial or frivolous issues. Counsel can choose either a climax or an anticlimax order for the presentation of strongest points. The climax argument begins with points of lesser impact, then builds and culminates with those of maximum impact. The anticlimax argument is obviously just reversed. Counsel, however, should NEVER allow issues of main impact to be diluted by blanketing them in the middle of the argument.
1. Developing Case Specific Themes
If your client is catastrophically injured, such as paralytic, brain damaged or otherwise severely impaired, one means of effectively developing a theme is to spend the day with your client. It is your job as counsel for the injured plaintiff to convey to the jury a clear understanding of the physical pain and suffering, mental anguish, physical disability and other elements of damage which your client has suffered in the past and will suffer in the future. In order to accomplish this, counsel must acquire empathy with the client on these issues. We cannot effectively and persuasively convey to the jury that which we do not fully understand.
A second technique of client involvement is to have the client write their own thoughts with respect to the physical pain and suffering, mental anguish, physical disability and impairment to earning capacity which they are experiencing. In addition to gaining a valuable basis for proof and argument of damages, you may gain a considerable insight into your client’s reasoning process and level of suffering and endurance.
Finally, conduct an in-depth general damages interview with your client, preferably with a medically trained person present. Ideally, we conduct these interviews on videotape with the video equipment being set up as unobtrusively as possible. By encouraging your clients to talk, as soon after the accident as possible, about the physical pain and suffering and mental anguish which they are experiencing, you acquire a new understanding of the depth and scope of their problems which will help you in developing, understanding and conveying your theme regarding damages to the jury.
2. Adapting Standard Themes
There are numerous standard themes which have been developed over the past few decades of litigation. There is no need to reinvent the wheel when we can stand on the shoulders of giants such as Harry Philo, Bill Colson and Scott Baldwin the people who have developed and successfully used these standard themes for decades. The standard themes include, for example, corporate greed vs. consumer safety, child safety, product safety, workplace safety or whatever category your client fits into in the case. The corporate greed theme is that:
A corporation has no heart, it has no soul, it has no nerve center, it has only bank accounts. Corporations exists solely to produce profits and converse only in the language of accounting. But this corporation must receive the message that the citizens of Texas will not tolerate corporate greed over consumer safety. As jurors in this case, you have the opportunity to send that crucial message to the corporation in this case.
That is a standard theme which can easily be assimilated to fit your case. Standard themes are located in several books that have been written on the subject of summation.
Case Themes – The importance of case themes is so vital that every case should have a case theme. It may be a simple theme in a rear-end collision case revolving around damages and the value of human life. In a malpractice case you may use a series of impact words and phrases that describe why the plaintiff ought to win and the defendant ought to lose. A case theme which explains both the plaintiff’s position and reverses the defendant’s theme is the perfect case theme. The case theme should be short and perhaps use alliteration or other literary techniques to make it more memorable.
Here are some examples of case themes. In a rear-end collision a young man was struck so hard that his head broke the rear window of the truck and he sustained brain damage. The case occurred because a laundry truck driver was changing lanes quickly in heavy traffic and did not see the plaintiff bring his vehicle to a stop in front of him. The theme for that case was “an erratic lane change led to a catastrophic life change.” That theme obviously said everything about the case. It said it was a serious case and that the injuries had substantial effect on the plaintiff’s life. It states that the injuries occurred because the defendant was negligent in changing lanes. In an oil refinery explosion, the defendant contractor had installed 120 valves backwards and had valves which allowed volatile hydrocarbons to bleed into the atmosphere. In that case, the theme was, “Ladies and Gentlemen, they contracted to build an extension to the oil refinery, instead they built a bomb!” Throughout the case that plant became a bomb in the jury’s eyes. Ultimately the reinsurance company, who sent someone over from London to observe the trial, decided they had enough of hearing about the bomb. They settled for substantial money on the third day of trial.
In an anesthesiology medical negligence case a child became anoxic due to a laryngospasm (a spasm of the larynx blocking off breathing). Instead of acting rationally and giving the drug Anectine to reverse the spasm, the anesthesiologist tried to force a laryngoscope (a tool used to insert a breathing tube) into the child’s mouth. When he could not force it in, he flung it across the room. The theme in that case was, “A professional panicked. Professionals must not panic.” This theme like the others said all there is to say about the case. It showed why the plaintiff ought to win and the defendant ought to lose. He panicked and he should not have.
These are just some ideas of what we mean by a case theme. You have to design your case theme with each individual case and each individual set of facts. With a little experience we find ourselves thinking of each case as “this is the case of (blank)”. Eventually we learn to develop great case themes and our presentation will become more effective. The case theme is repetitive. The key words are used in voir dire, driven home in opening statement, logically supported by evidence from witnesses, documents and demonstrative evidence, and driven home forcefully in closing argument. By repeating a case theme, we tie the case together in the jury’s mind. We will now consider a technique which will encourage the jury to adopt your case theme.
3. Thematic Anchoring
Anchor the case theme so that the message contained is remembered and used. See infra at B2 b