TRIAL PRACTICE
Developing a Trial Theme That “Sticks”

By Susan H. Farina

Acompelling theme should be the backbone of every trial strategy. A trial theme allows for the presentation of evidence in a manner designed to educate and, ultimately, help persuade a jury to determine facts in a client’s favor. This article addresses and combines two concepts: (1) “thin-slicing”—the act of reaching immediate, unconscious conclusions that influence behavior; and (2) “sticky” ideas.

What is thin-slicing? In his book Blink: The Power of Thinking Without Thinking (2005), Malcolm Gladwell articulates the concept of thin- slicing, which he describes as “a critical part of rapid cognition” that “refers to the ability of our unconscious to find patterns in situations and behavior based on very narrow slices of experience”—so-called snap decisions. Although snap decisions may appear to be made instantaneously, researchers believe that they are based on an unconscious ability to perceive patterns and behavior based on past experiences and act on those perceptions long before our conscious state is aware of the pattern.

Unconscious rapid cognition plays a role in subsequent thought process and behavior. It is the concept of rapid cognition and its influence on thought process and behavior that this author believes may play a useful role in the development and execution of a trial theme.

What are sticky ideas? The second concept that may be useful in the development and execution of a trial theme is the concept of sticky ideas, which authors Chip Heath and Dan Heath explore in their book Made to Stick (2007). For an idea to be successful—that is, sticky—it must incorporate six principles, which Heath and Heath summarize with the acronym SUCCESs: Simple, Unexpected, Concrete, Credible, Emotional, Story. The “villain” to the concept of sticky ideas is the “Curse of Knowledge”—assuming too much information in a communication such that the idea does not stick with an audience.

“Finding the core” is the heart of the first part of the SUCCESs acronym: “Simple.” Finding the core means stripping an idea down to its most critical essence by weeding out superfluous and tangential elements. Once you have determined the most critical essence of an idea—its core—communicate the idea by using proverbs or visual proverbs.

The second SUCCESs principle, “Unexpected,” is equated by Heath and Heath with the concept of surprise: “Unexpected ideas are more likely to stick because surprise makes us pay attention and think.” To surprise people, the message must break their typical way of thinking about a particular concept. When the schema is broken by surprise, people want to determine why they were surprised so they can avoid being surprised in the future, which causes them to think about and remember the surprising idea. The challenge, however, is to make sure that the surprise itself does not overwhelm the message you seek to convey. Further, after the initial surprise, the message must create “enduring interest” for people to remember it over time. Create a mystery with information to prompt people to ask, What will happen next?

The third and fourth principles, “Concrete” and “Credible,” convey the notion that for a message to stick, it cannot be abstract or incredible. Concreteness is the use of a universal language to provide both novices and experts with the ability to understand easily the message. The idea also must be credible—easy for people to believe. One way to make ideas credible is to convey them with detail. Other ways to make ideas credible include using an authority statistics (when not over used) and testable credentials.

The goal of the fifth principle, “Emotional,” is to make people care about your message. Heath and Heath suggest that we make people care by appealing to the things that matter to them.

The goal of the sixth principle, “Story,” is to make people act. An inspiring story that simulates events will have more stick because the imagery prepares people to act by evoking the brain modules for physical activity and then inspiring them to take action.

Develop a trial theme that sticks. The trial theme should be the core of your case. Begin developing the trial theme as early as possible. Find the core—the trial theme. Review documents, deposition transcripts, and other materials with a view to determining the theme of your case. What is the underlying, most important message you wish or need to convey? From which witnesses can the message or elements of the message be elicited? During discovery, test your theme in depositions. Ask questions to elicit information that will help develop the theme.

Once you have found the theme of your case, determine how best to convey it using the SUCCESs checklist. How can you convey the theme simply and effectively? Keep the theme simple. Complicating the theme may alienate jurors. Make it easy for a jury to remember your trial theme by refining it to a simple core message that can be conveyed by reference to concepts already well known and understood.

Be counterintuitive to surprise the jury in a way that will make the theme stick with them. Would a demonstration be useful? What can you do to ensure that the jury is paying attention? Be sure that your theme is concrete—and credible—by eliciting detail from witnesses.

How will you use emotion to help your theme stick? Why should the jury care about your client’s case? What emotions do you want the jury to feel when your client testifies? What questions can you ask to elicit that emotional response?

Once you have defined and refined your trial theme, allow the theme to guide your presentation of evidence. Can the jury be primed through your opening statement, the wording of your witness questions, or by the order in which your witnesses testify to view certain facts in a particular way? Can you elicit details that will make your witnesses and documents more credible to the jury? Will an authority figure or anti-authority figure help cement the importance of certain facts? Will photographs stir the emotional response you want? Elicit testimony that describes in detail how things look, sound, taste, smell, and/or feel to help jurors remember and gain confidence in your witnesses. How will you unfold your trial story to prompt the jury to care about your case and be ready to take action/decide facts in your client’s favor? Use your closing argument to reinforce priming concepts, details, and other ways to lend credibility to your theme, emotions, and story.

Don’t forget how you come across to jurors, who will take one look at you and begin to form an opinion that is very likely to influence how they react to your case, whether they realize it or not. You need to be credible so their snap judgments are favorable.

By finding the core of your trial theme and incorporating it throughout your trial presentation in ways that maximize the chances that your theme will stick with a jury that is primed to receive it, you will also be maximizing your client’s chances for trial success.

 

  • Susan H. Farina is senior vice president and general counsel of Proveris Scientific Corporation, located in Marlborough, Massachusetts; she may be reached at sfarina@proveris.com.

    Copyright 2010

Back to Top

< /