Plotting Your Strategy: Does Your Trial Have a Theme?

PaintingA theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions.

There are number of potential themes. Watch movies and see how things are developed and see what are the best and emotive ones. I have a book that has nothing but quotes from various movies which I try to interject into my closings to highlight the theme and make them more interesting and compelling. For example, a closing argument may dealt with the themes “profits over safety” and “accepting responsibility“. Here is an introduction from one of my closing arguments:

This is an important case. It’s important for a lot of reasons –  as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. Smith did not accept responsibility. Mr. Smith ignored facts. Mr. Smith ignored laws. Mr. Smith was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed, you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.

​Below is a short list of some themes:

​a.​ Safety – We do not allow profits to take priority over safety.

​b.​ Keeping Promises – A man’s word is bond.

​c.​ Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.

​d.​ David & Goliath – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

​e.​ Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

​f.​ Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

​g.​ Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.

​h.​ Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.

​i.​ Struggling to Overcome Impossible Odds/Courage– Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.

​Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your opening statement and closing argument.

Find those descriptive words and themes that best etch a picture in the jury’s mind about which your case is all about. Return to the themes raised in your opening statement and hammer them home in your examinations and closing. You may do this with topically leading questions such as, “I want to talk to you about the day where everything changed for Mary, do you understand?” Or it might take the form of, “I want you to tell the jury, about how this incident changed your life,” and then delve into the topic as if the witness were your client. Whatever powerful words you’ve created to draw the jury into your client’s story should be used to tie the evidence together for them with your questioning.

Hammer home your themes on cross-examination through the use of rhetorical questions and deductive logic.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on August 13, 2015, in closing arguments, cross-examination, Jury Selection, mock trial, testimony, Trial Advocacy and tagged , , , , . Bookmark the permalink. Leave a comment.

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