“Pride Over Policing.” “Science, Not Speculation.” “A Culture of Callousness.” “They Got What They Paid For.” What do these phrases have in common? Each was a trial theme we developed for our clients in high-profile cases, and each was quoted in newspaper headlines in the days that followed those trials. If the phrases stuck with reporters, you can be sure they stuck with the jurors who were watching, too. (Each case also ended in victory for our client, in case you were wondering.)
Trial themes are short, memorable phrases tied to your main arguments. They are intentionally oversimplified to make them easy for jurors to understand, write down, and assimilate throughout a lengthy trial. Well-constructed trial themes leave a lasting impression that can turn the tide of jury deliberations. But to harness their power, attorneys must understand why they work—and how to make them work well.
Why Are Themes Useful?
Social science research on cognition and memory has identified a number of factors that improve subjects’ recall abilities. As you might expect, shorter words and phrases are significantly easier to remember than longer words and complete sentences. That’s why advertising companies generate simple slogans like “Just Do It” and “Don’t Leave Home Without It.” Words and phrases that are repeated are more memorable as well. But less apparent are other research findings, such as improved recall when words share sounds or have overlapping meanings, connotations, or associations. Song, rhythm, and rhyming can also improve memory—it’s how we learned our ABCs, after all. Even the emotionality of a word can improve recollection. For instance, the words “fear,” “pride,” and “joy” are more likely to be remembered than inanimate objects. Several studies have also looked at the impact of organization on memory. Time and time again, they show that people can recall more information when the information is organized into topical lists.
Good trial themes leverage social science findings like these in a legal context. They create memorable “buckets” to help jurors absorb and organize the mountains of evidence thrown their way. When attorneys place each case fact, document, and witness into one or more of these buckets, jurors no longer have to try to remember every piece of evidence—which they never will—but rather can refer to the thematic buckets and the key evidence housed within them.
Crafting a Successful Trial Theme
As you contemplate your own trial themes, the single most important question to ask yourself is, “Will jurors write this down and repeat it?”
Jurors should be echoing your arguments in the deliberation room. If you cannot envision jurors in the venue writing a theme down and repeating it, rethink it. If it is longer than a newspaper headline or advertising slogan, rework it. Trial themes should be pithy, simple, and memorable. Done right, you will hear them (as we often do) repeated by mock jurors in deliberations and from actual jurors in post-trial interviews.
Numerous literary devices can make your themes more memorable:
Alliterative, Consonant, and Assonant Phrases
Phrases with multiple words sharing similar sounds are pleasing to the ear, fun to say, and easier to recall. Consider the following two themes: “The Dose Makes the Poison” and “The Dose Makes the Difference.” Both are pithy, but the latter, with its repeated “D” sounds, is more likely to be remembered. There is no need to abandon the “Poison” variant altogether; you might use it instead to supplement the other. Additional successful, real-life examples have included “Everyone Can’t Be Responsible for Everything,” “It’s Exactly as You’d Expect,” and “Projections Aren’t Promises.”
Rhyming and Rhythm
These verbal patterns also contribute to memorable themes. Almost anyone alive during the OJ Simpson trial knows well the phrase, “If the Glove Don’t Fit, You Must Acquit.” And while rhymes can veer into cheesy territory and are best used sparingly, the power of rhythmic phrases cannot be overstated. Try saying themes like “Any Driver, Same Result” or “Totally Different Cranes, That Operate Totally Differently.” Their sing-song quality captures jurors’ attention and wraps up your argument with a punch.
The “Rule of Threes” is a notable subset of rhythmic phrasing. For whatever reason, humans like to hear things in groups of three. “Experienced, Qualified, and Competent” might describe a driver you are defending in an accident case. “Context, Completeness, and Consistency” are important things the jurors should look for when evaluating the documents presented by opposing counsel. Presenting a trial theme in three words is a great way to encourage jurors to write it down and remember it.
Colloquial Phrases and Idioms
Jurors are already familiar with and use them on a regular basis, so they supply jurors’ strained memories with a natural shortcut. “An 18-Wheeler Can’t Stop on a Dime,” “With Great Power Comes Great Responsibility,” “A Plan Isn’t Set in Stone,” and “Practice What You Preach” are all phrases you have probably heard before, and each of those phrases has been used in trial to hammer home an important point. One of the greatest things about conducting jury research is that you will frequently hear mock jurors use idioms and colloquialisms when talking about your case. What better way to connect with jurors in the trial venue than by adopting their own words?
Presenting Themes to a Jury
If you want jurors to repeat your trial themes, you had better repeat them, too. No matter how memorable they are, your themes are competing with thousands of other words in the courtroom. Give them a signal boost: introduce themes frequently in opening, incorporate them into visuals and witness Q&A, and circle back in closing.
Opening and Closing
Opening and closing offer the most obvious means to present themes to a jury. We suggest introducing an argument with its corresponding theme, either as the first words out of your mouth or somewhere within your first sentence. But you should also revisit the theme when you are wrapping up the topic—a thematic “mic drop,” if you will.
Just as opening and closing bookend your case, themes should bookend your argument on a given subject. You can say the exact same phrase, or you can use variations to mix it up. For example, you might start with, “Not Every Medical Issue Is a Medical Emergency,” and at the end of the argument, re-emphasize that “Medical Issues Don’t Make an Emergency.”
Visuals
When it comes to learning, of course, many of your jurors will favor their eyes over their ears. As we know from seeing mock jurors’ handwritten notes, they are much more likely to write down your trial themes when you have done so yourself and put them on display.
Consider writing out your themes under a document camera or on an easel and include them as headings on your slide deck throughout trial. Remember the bit about “buckets”? By making your theme the heading of a slide or series of slides—with the related facts, demonstratives, document callouts, and testimony outlined below—jurors can watch along as you put the evidence in that bucket. You can even color-code your evidentiary slides with their associated themes for an added mnemonic touch.
Witnesses
Lastly, trial themes are most effective when they come from both counsel and witnesses, so try to elicit testimony that reaffirms those themes. You can even do this with opposing witnesses: “Is it fair to say, doctor, that the dose makes the difference in determining whether an exposure is hazardous?” However, be careful that your own witnesses are not using the exact same phrases as one another, as this gives jurors the impression that the testimonies are rehearsed. Invite witnesses to come up with their own theme variations during your prep sessions, or suggest variations for them to use (e.g., “It’s All About Dose.”) Work with your witnesses ahead of time so they can practice weaving the case themes into their testimony naturally and in their own words.
In Conclusion
A good trial theme is anything a juror is going to write down in their notebook and bring up in deliberations. In a long battle for the jury’s attention and memory, certain methods make that outcome more likely. And once you’ve crafted your catchy phrases? Repeat, repeat, repeat. A good theme said only once is a good theme gone to waste.
It is tough to pinpoint the ideal themes for any given trial venue and set of case facts, and the only way to know with confidence is to test them through jury research. But the next time you see your theme repeated in mock trial deliberations or a post-trial interview—or maybe even in the headlines—thank a psychologist.
This article was originally published in the Summer 2023 issue of the USLAW Magazine. Republished with permission.
