How do you get jurors to actually remember your themes and recite them during deliberations to advocate for your client’s position? While some tactics may be more obvious than others, we offer below a few methods for ensuring your themes stick with jurors well after your closing argument.
Use Memorable Phrases
After over 20 years, we all still remember one of the most notorious trial themes ever used: “If it doesn’t fit, you must acquit.” While we do not generally recommend rhyming themes for most case types, the point is that the best themes are short, pithy, and attention-grabbing—essentially a slogan for your case. Themes should be no longer than a newspaper headline or they become too cumbersome for jurors to remember or recite. Idioms and colloquial expressions can make great themes because jurors are already used to saying them. Phrases like “One bad apple spoils the bunch,” or “With great power, comes great responsibility” already resonate with many jurors, and using themes that jurors are familiar with makes them that much easier for jurors to remember.
When developing novel themes, we often recommend using alliteration; it is not as “hokey” as rhyming, but often just as memorable. For example, in one recent case, trial counsel wanted to emphasize that the plaintiff was at fault for their injuries because she deviated from the designated walkway and crossed a parking lot where she subsequently tripped over a concrete wheel stop. To drive home this point, we developed the theme “Went off the walkway.” The subtle alliteration helped make the phrase memorable and, in fact, when we interviewed jurors after the verdict, several of them commented that “it was her own fault because she went off the walkway!”
Many consultants also suggest using “the rule of three,” a principle suggesting that things in groups of three are more pleasing to the ear and easier to remember. In criminal cases, “means, motive, opportunity” can be one of the most effective themes, whether for the prosecution or for the defense. Indeed, in one case where the DNA evidence pointed strongly toward our client, we successfully argued for an acquittal on the theme, “No motive, no means, no opportunity.” We encourage clients to be creative when developing themes and to test them in advance of trial to see how receptive jurors are likely to be.
Write Themes Down
Another way to make sure jurors remember your themes is simple—write them down and make sure that jurors write them down if they are permitted to take notes during openings or closings. To clarify, writing your themes does not mean just showing them on a PowerPoint slide. I often suggest physically writing out the theme while discussing it during opening and closing, or even with witnesses. This can be done easily on an easel or even just on a piece of paper on top of the ELMO. Writing out your themes is a signal to jurors that “Hey! This important.” Attorneys are often amazed that when they write down the themes, jurors will follow their lead and write down the themes in their juror notebooks. What better way to get your themes into the deliberation room than to have the jurors physically carry them there in their notebooks?
Use Graphics to Emphasize Themes
After writing out the themes, subsequently showing them on PowerPoint slides further reinforces them. Themes make great titles for slides, particularly because they help tie the evidence you are displaying within the text of each slide to its corresponding theme, helping jurors to assemble the case story within your thematic framework. Icons, emojis, or representative pictures also help jurors remember your themes because they connect a visual stimulus to the message. In the example above where we used the theme “Went off the walkway,” a crosswalk icon could be shown on a slide next to the quoted testimony from the witness. Because many jurors are visual learners and think in pictures, do not neglect this powerful tool when developing your presentations.
Repetition of Themes
Obviously, the best way to make sure that jurors remember your themes is to say them out loud and often. While it may seem repetitious to you, when they are dispersed throughout the opening, within your questions to witnesses, within the answers from your witnesses and during closing, the repetition ties the evidence together and to the memorable theme.
Conclusion
The most successful trial themes are those that are recalled and repeated by the jurors during deliberations. To get jurors to echo your themes, they need to remember them. Developing themes for your case often means turning to others for creative brainstorming and idea sharing. Jury consultants, colleagues, and even family members can help you with developing memorable themes that will drive your messages home to jurors.
