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13. The Best Jury Research Format to Test Trial Themes – There are special jury focus groups and other special jury simulations that are planned and designed specifically to test a particular trial variable or variables—the most effective voir dire questions, the case’s true settlement value, the effect of a particular witness’s testimony, and so on. What special jury focus group or jury simulation format works best to determine the right trial theme?
After planning and organizing more than 5,000 jury focus groups and jury simulations during the past 17 years, our firm has determined that one specific surrogate jury research format—the “interactive” focus group—works best to test trial themes.
This distinctive jury focus group is organized on an informal basis to encourage the surrogate jurors’ full and open participation and interaction. The surrogate jurors can sit, stand, or move about as they desire, hors d’oeuvres and other refreshments are available, and the overall setting is kept as casual as possible to promote a relaxed “social–type” ambience. (An ideal setting for the “interactive” focus group is a hotel suite with one or more sofas and numerous easy chairs.)
Both sides of the case are presented during the focus group proceedings, followed immediately by comprehensive deliberations among the surrogate jurors. A behavioral scientist is present to stimulate but in no way lead these deliberations. His or her primary goal is to keep the discussion focused on what the surrogate jurors determine to be the basic issues of the case.
The surrogate jurors are subtly encouraged to simplify the case—to break it down into its fundamental components and issues. They are further encouraged to develop answers for some essential questions: What is the significance of the case? What is it all about? What is its underlying message? What word of phrase best describes the case and brings it all together? What is its theme?
In addition to a professional analysis of the group’s deliberations, each surrogate juror is interviewed privately to determine his or her attitudes concerning the basic issues of the case. These individual responses are evaluated psychometrically (the methodology for quantifying mental and other subjective data) vis–à–vis the various trial themes being investigated and/or tested; and each individual response is again measured psychometrically against the surrogate jury’s group deliberations concerning the theme of the case as they envision it.
Through this highly focused investigatory process, the basic theme for the case clearly emerges. This special “interactive” focus group testing is then repeated again and again with different sets of surrogate jurors to ensure the validity of the results as established—i.e., the trial theme guaranteed to achieve the widest latitude of acceptance with potential jurors.
14. Must Use the Right Theme – While it is important to build your case around a basic theme, it is critical to use the right theme, i.e., a theme guaranteed to achieve the widest possible appeal with a jury. The problem is that too often, attorneys tend to rely on intuition, hunches, and guesswork to come up with the right themes for their cases.
Intuition has its uses. The methodology by which novelists, artists, poets, and other creative individuals develop themes for their work is usually intuitive. Intuition is also an indispensable forecasting technique for persons occupied in many other colorful fields of endeavor, including sports handicapping, professional gambling, prospecting for gold, and weight–guessing at carnivals.
However, theme development for the courtroom should not be based on intuition, instincts, or guesswork. The attorney has a professional responsibility to determine—with as much certitude as possible—how the jury will judge the merits of the case as presented. The trial theme is the heart of the case. A flawed theme can kill the case. The client deserves more than an educated guess concerning what the best theme for his or her case should be.
This means that the theme should be thoroughly tested prior to trial. The attorney who does not take this essential step often learns only after the jury has ruled against his or her client that the selected theme was wrong. Perhaps it did not support the case facts and was not considered credible by the jurors; it may have run counter to the jurors’ beliefs and prejudices, or it was inappropriate in some other essential way.
Testing a theme to make sure that it will develop the widest possible appeal with jurors does not mean trying out various themes, ad hoc, on a random assembly of colleagues and office staff. Such an arbitrary group’s intuitive grasp of the case, vis–à–vis the most appropriate trial theme, may differ substantially from how a jury will consider things. Some attorneys learn to their chagrin that the recommendations of casually–organized theme–testing groups often can lead away from the best trial theme and tactics!
The bottom line is clear: to determine the ideal trial theme, the attorney must make sure to employ the most rigorous theme–testing methodology available—and not a random sampling of opinion.
15. Developing the Right Trial Theme – The best way to determine the ideal trial theme is through jury focus groups and other jury simulations. This parallels the test–marketing of products common in the commercial sector and of issues and individuals in the political sector.
Jury focus groups and jury simulations function like a Rorschach test, illuminating jurors’ cognitive processes. They consist of abbreviated versions of the upcoming trial, as presented before a carefully selected sample of surrogate jurors. When professionally organized and evaluated, jury focus groups and jury simulations can reliably determine a true jury–validated trial theme, i.e., one that is guaranteed to develop the widest possible appeal with the jury.
Additionally, jury focus groups and jury simulations provide a wealth of other useful information, such as the most effective voir dire questions to ask, the best way to structure the opening statement and closing argument, how to handle direct and cross examinations, the likely impact of expert witness testimony, and so on.
16. Trial Theme Discovery – Focus groups are the optimum research tools available to determine the all-important trial theme. What is a theme? A theme is a brief—often one or two words— summary of the case, it’s raison d’être. A strong theme is absolutely essential to courtroom success; indeed, theme development is the most basic and essential concept for all planned and structured communications. You can’t have the chicken without the egg, and you can’t communicate in any meaningful way—in court or out—without a compelling theme.
Theme development is particularly fitting when it comes to all forms of persuasive communications, including courtroom argument and debate. Attorneys need to consider the following trilogy of truths regarding theme development: 1) trial themes personalize the primary case issues; themes help jurors form impressions, and 3) impressions win lawsuits.
Decades of jury research indicate that jurors deliberate in themes. The trial theme provides essential meaning to the jurors, and helps them organize and remember the case facts. A strong theme will prompt the jurors to look for evidence that supports the theme while ignoring evidence that doesn’t. The right theme helps jurors rationalize away all the case conflicts and justify the desired case viewpoint.
Some examples of worthy trial themes include “David and Goliath” or “arrogance” (for commercial cases), “an ounce of prevention is worth a pound of cure” for negligence cases, and “covering all bases” for medical malpractice cases.
It is essential that the attorney find a theme that will achieve the widest possible level of acceptance with juries (i.e., the theme that is most consistent with the jurors’ thought processes and metaprograms). This can best be achieved through focus group research.
When you find the right theme, you will know it—the whole case comes swiftly together and falls neatly into place. The jurors’ individual frames of reference shift positively towards you; and it suddenly becomes clear that your point of view regarding the case dispute is the right one and the other side’s is wrong. A good facilitator does not rest until he or she finds the ideal theme.
In a recent disposable lighter case in which I assisted, the manufacturer had a childproof patent for years, but did not make it available to the marketplace. The mother in the case had kept the manufacturer’s non-childproof lighter well hidden. Nevertheless, her small son was severely burned after finding the lighter and playing with it.
The lighter met all applicable standards and worked precisely as intended. For these reasons our focus group participants did not accept any of the various concepts proposed by the plaintiff—i.e., that the lighter was unreasonably dangerous, that it was defective, or that the manufacturer had been negligent in its failure to warn of possible danger.
The case was going nowhere fast. Then, during additional focus group research, the concept of “effort” suddenly surfaced. It was as if someone had turned on a giant spotlight in the room, brightly illuminating and clarifying the case so all could understand and agree on it. The surrogate jurors felt in unison that while the mother had at least made an effort to prevent an accident by hiding the lighter, the lighter manufacturer had made no effort at all to market a safer product, even though it was fully capable of such action. The “effort” theme was subsequently employed in court to win a substantial award for the plaintiff.
Once the appropriate theme is discovered, it needs to be rhetorically adjusted to the jurors’ key metaprograms so that it will resonate most strongly. In our lighter case, for example, a valuable and revealing voir dire question was developed via this technique: “Why is it important for a manufacturer to put forth some effort to prevent injuries, even if their products meet the prevailing standards?”
17. Enveloping the Theme – The theme is an invaluable tool the attorney can use to build the strongest case possible. To do so, he or she must understand how to maximize use of the theme in court. The best way to accomplish this is to “envelope” the theme throughout every segment of the trial.
The attorney may have learned during pre-trial research, for example, that the jurors will consider “precaution” to be a primary issue for the premises liability case he or she is planning. The attorney has decided therefore to use “precaution” as the basic theme for the case. He or she should then “envelope” the theme throughout the various trial segments:
Voir dire— “As a homeowner, sir, do you take precautions to prevent accidents from occurring? How do you feel about another homeowner’s failure to take the same precautions that you do?”
Opening statement— “The key issue of this case is whether the defendant could have taken precautions to prevent this grievous injury from occurring to my client. Why didn’t they? Was it because they were negligent, or because they just didn’t care about instituting adequate precautions to prevent injuries from occurring to their guests?”
Direct Examination— “Sir, when you entered the premises, did you notice whether the defendant had set up any safety fencing, had posted any warning notices or signs, or taken any other precautionary measures, to advise against possible hazards due to the renovations taking place above?”
Cross-Examination— “Four people have been injured at your office building during the past three months. What type of injuries do you think could have been prevented, if you and your staff took some preliminary safety precautions at the property?”
Closing Argument— “In four days of testimony, the defendant has not been able to detail a single action it took as an essential precaution to protect people visiting the office building while the extensive ceiling renovations were under way.”
18. It Don’t Mean a Thing If it Ain’t Got That Theme – Remember high school composition class? The instructor drilled repeatedly that strong writing and public speaking depend on a clear theme—the most basic concept for planned and structured communications. It was and it remains a valuable lesson: You can’t communicate in a sustained, meaningful, and convincing way without a theme.
This universal maxim is equally valid when it comes to trial planning, preparation, and presentation. A vivid and powerful trial theme is absolutely vital to effective courtroom communications; indeed, it’s the raison d’etre of the attorney’s case. Presenting a case to jurors means telling them a convincing story they will be able to readily accept. This is impossible without a compelling theme.
A trial theme frames the case so the jurors will see it in a specific desired way—an essential factor in winning the case. Consider, for example, the probable difference in verdicts if the jurors are led to regard a particular trial dispute as a “darting child” case instead of a “child knock-down” case. Research indicates that jurors deliberate in themes. Struggling to make sense of the confusing and conflicting facts presented to them during the trial, jurors attempt to organize this information into certain well-established paradigms. They accomplish this best through themes. It is essential therefore that you, and not the opposing counsel, supply the jurors with the key theme they will require, and will be looking for, in order to bring meaning to the trial and thus reach their verdict.
What constitutes a good trial theme? This should be a basic and memorable concept that summarizes and headlines the case in a few words—”arrogance” for a commercial case, “murderous rage” for an assault case, “thou shalt not steal” for an intellectual property case. (The Bible is filled with numerous valuable themes that work well in trials. In this regard, the “Seven Deadly Sins” often make excellent themes for commercial cases.)
An effective trial theme is the putty that holds the case together for the jurors. It helps them eliminate all of the confusion regarding the various trial conflicts and justify the desired case viewpoint.
Clearly, a workable trial theme is a key factor to be successful in court. But not just any theme will do. Indeed, the wrong theme can work against your client’s best interests. (A flawed theme can kill the case!) You must find the ideal theme—that is, one certain to achieve the widest level of acceptance among jurors. This trial theme should not be intuited nor developed through an ad hoc grouping of colleagues and friends. (What appeals to these individuals may have no relationship at all to what the jurors will consider important.)
The ideal trial theme can only be determined through rigorous testing via jury simulations and jury focus groups. Such litigation research is similar to the test-marketing that is conducted before a commercial product or service is introduced, or a political candidacy or issue is floated.
Jury focus groups and jury simulations involve surrogate jurors who are carefully recruited and organized to evaluate the case and its specific key issues. Various trial themes are rigorously and repeatedly tested with different groups of surrogate jurors to see which will be most preferred. Through such repetitive jury research the ideal trial theme will emerge. The attorney can then use this scientifically-validated trial theme to plan the case with confidence.
For the attorney who has never worked with jury focus groups or jury simulations, the results can be astounding. Such litigation research provides a unique crystal ball into the minds of jurors, uncannily and accurately revealing what they will think and feel about the attorney’s case.
Once the ideal theme has been determined, it should then be put to maximum advantage inside the courtroom. Attorneys are familiar with the concept of primacy—jurors remember (learn) best what they hear first. It is important, therefore, to strongly hammer home your theme with the jurors during the opening statement. Additionally, the theme should be referenced at key points throughout the other trial segments – direct examination, cross-examination, closing argument, and even voir dire.
In terms of voir dire, the attorney can reference—and thus introduce—his or her theme through questions to the panelists concerning it. If it has been determined, for example, that the best theme for a negligence case is “prevention,” the attorney could ask the panelists what their attitudes are regarding taking safety precautions to “prevent” injuries to others.
This process of punching up or “enveloping” the theme on a continual basis sends the jurors a message – the theme – they are bound to receive. Such regular repetition of the theme throughout the trial will firmly reinforce it in the minds of the jurors; and in the process, provide them with the basic schematic they will require to organize their deliberations. The attorney’s theme becomes, in effect, the all-encompassing motif by which the jurors are able to make sense of the trial—and thus determine who should win it.
19. Identifying the Conversation – During focus group or mock trial deliberations, the astute trial consultant and attorney will key in on juror conversations which may occur during the actual trial. Deliberations are simply conversations among the jurors. Jury focus groups are excellent strategic planning aids because they demonstrate in vivid fashion how the jurors will likely converse about the case and its key issues. Normally there is one critical conversation regarding the defendant and another critical conversation regarding the subject of damages. Consider the following example of a deliberation conversation concerning pain and suffering:
Juror No. 1: No amount of money will compensate her.
Juror No. 2: I agree. How can we even consider this?
Juror No. 3: You’re right. It’s very difficult to get a handle on just what is the responsible thing to do.
Juror No. 4: It’s difficult, but does that mean she gets nothing?
Juror No 1: No, let’s give a fair amount.
Juror No. 3: What is fair?
Juror No. 1: Well, I guess that’s for us to decide, isn’t it?
Juror No. 5: In that case, what will the money be used for?
Note that during their deliberations, the jurors constantly pose questions to each other (and to themselves); all questions must be answered before they have discharged their duties and can go home. If pre-trial litigation research is conducted properly, it can be anticipated that the same questions will be raised during jury focus groups and jury simulations that will also be raised during deliberations. Armed with this key information, the attorney can rhetorically pose these questions during the trial, then immediately answer them. The jurors will then have ready answers to these questions during deliberations.
Pre-trial litigation research enables the attorney to anticipate the deliberative “conversation” that will take place; and thus be in an excellent position to influence its overall content and direction. This capability provides the attorney with tremendous power. In the “pain and suffering” conversation described above, the jurors will be more psychologically predisposed to rely on the attorney’s answers as a useful framework when they must consider these issues.
20. Complex Cases Require Strong Themes – The most able litigators know that you always need a good trial theme in order to effectively present and successfully win your case in court. This is particularly true when it comes to complex commercial cases such as intellectual property disputes.
A good theme summarizes the sometimes difficult to understand intellectual property case in a few words so the jurors can make sense of it. It frames the case so that jurors see it the way the attorney wants them to see it. And it provides jurors with an essential peg upon which they can hang their deliberations.
This means that the case will be discussed in terms favorable to the client. Furthermore, accentuating the theme throughout all aspects of the trial helps to establish the tone and rhythm of the case. As in tennis, it’s like keeping the ball in the opponent’s court for the entire match.
The trial theme binds the case together. It is a life preserver jurors can hold onto throughout all the trial’s tempests and tumult. It helps jurors rationalize away all the case conflicts and justify the preferred viewpoint concerning the case facts.
The trial theme is essential for juries. You can’t have the chicken without the egg, and you can’t communicate in any sustained and meaningful way with jurors without a compelling theme.
21. Themes Can Spice up Boring Cases – Intellectual property disputes generally lend themselves well to strong themes. Stay Electronics, a relatively small computer software firm, recently beat mighty Microsoft Corporation in court over a patent infringement suit regarding disk compression technology. “David and Goliath” is the ideal theme for such a case—a small company battling for their rights against an industry giant. When presented in such a way, the jurors are predisposed to side with the plaintiff, because natural sympathies almost always are with the “little guy” in a fight.
“Thou shalt not steal” is another strong theme that often works well for many copyright, patent, trademark and similar infringement cases. A couple of years ago the humor columnist Art Buchwald, and Alain Bernham, another plaintiff, were awarded $900,000 in damages by Paramount Pictures, producer of “Coming to America.” Mr. Buchwald claimed that he thought of and presented a story similar to “Coming to America” to Eddie Murphy four years prior to the movie’s production.
Mr. Buchwald was able to argue successfully in court that his idea had been stolen and used by others to enrich themselves. When employed as the theme in such a case, “Thou shalt not steal” creates a sense of shared value between the jurors and the plaintiff. Everyone agrees that it is wrong to steal.
(Note: Dozens of valuable themes involving riches, wisdom, good versus evil, and so on can be found in the Bible. Along this line, the “Seven Deadly Sins” make powerful themes for commercial cases.)
A great trial theme locks the jury’s attention to the case’s pivotal point (e.g., Microsoft Corporation arrogantly appropriated for themselves the hard–won technology of a much smaller firm). It crystallizes complex legal concepts and arguments, while at the same time making the ideas they represent impossible to forget, and many times even impossible to deny.
Astute trial attorneys, recognizing the significance of theme development have made trial consulting the fastest growing part of the trial industry. The merger of law and social science is a marriage of overlapping skills which combine to give the field of persuasion a new, modern look. The attorney who is not armed with help from the social sciences but must confront opponents in court who are heavily armed runs the risk of finding himself or herself at a distinct disadvantage.
The goal of this paper has been to acquaint legal professionals with the myriad aids which are available from trial consultants, focus groups, social sciences and psychologist in our ongoing efforts to most effectively represent our clients best interest at the courthouse.