Podcast - Crafting Winning Strategies: Theories and Themes in Trials

Dan Small: In trying a case effectively, you need to have a theory of the case, and you need to develop themes to help persuade the jury. Although they're both important, they're not the same, and they both need to be considered carefully.

First, the theory of the case. The word theory may be misleading. It's not conjecture or hypothesis. It's a shorthand way of describing what you believe and will prove happened.

A theory might go like this: The defendant doesn't dispute that Mrs. Jones was attacked and robbed, and that she's an innocent victim. However, he was not the one who did it. He was not there. He was at work, eight miles away, at the time of the attack. Mrs. Jones' identification of him is simply mistaken.

A theory will help focus your presentation on things that matter. For example, whether the victim should have taken more precautions. The facts that you develop should help prove the theory. Don't elicit facts without a clear purpose. A successful theory needs to be reasonable, or at least plausible. If you can't come up with a reasonable theory, maybe you need to settle the case and move along. Remember that your opponent will have their own theory of the case. Don't just ignore harmful facts. Your theory needs to take those facts into account.

Next, themes. A theme is a core fact or core conclusion that you want the jury to focus on during the trial. Usually, a theme is grounded in facts, but sometimes it's purely argumentative. Even a simple trial may have dozens of stray facts and arguments, and you want to make sure the jury remembers your key points.

In my most recent book for the ABA, "Lessons Learned from a Life on Trial," several of the stories involve a case that I prosecuted involving a grain elevator that exploded, killing 18 people. I discovered after talking with friends and family that they didn't understand the basic facts of the case. Grain dust is highly dangerous. When most people hear the word grain, they think bread. No one fears walking down the bread aisle because the bread loaves might explode. They won't. Yet, the reality is that grain dust suspended in the air is five times more explosive than coal dust. That fact became one of my core themes. Grain dust is four times or five times more explosive than coal dust. Everything — argument, testimony, experts, demonstrations — focused on helping the jury to truly understand and accept that fact.

When developing your themes, bear in mind these cautions. First, facts come first. A theme is useful if it helps to explain or interpret facts. But it's not a substitute for evidence. Next, themes by their nature are simplistic. But if you oversimplify, your credibility may be undermined when the facts don't line up quite so neatly as your theme would suggest. Next, beware of the overly argumentative theme. You may think that corporate greed or systemic racism is a winning argument, but others may be put off by it. If the facts really are that powerful, they can speak for themselves. Next, themes can sound gimmicky. Reducing your case to a catchphrase may sound a little too slick, and more so the more often you repeat it. You're not selling a product here, and you certainly don't want to sound like a salesman.

One way to conceptualize these issues is to use the STEM questions protocol from the field of education. According to that protocol, any effective presentation must answer three basic questions: What? So what? And now what? In the trial context, "what" means: What happened? What are the facts? The next one, "So what," means: Why does it matter? What difference does it make? And the question "Now what" means: What do you want me to do about it? You need to supply the jurors with clear and coherent answers to those questions. Don't leave it to them to puzzle it out on their own.