“So What is This Case all About?” The Importance of a Good Theme at Trial

Author: Janice Walshok

A jury of twelve people who could not figure out a way to get out of jury duty, or did not have the heart to make something up, has now been empaneled. The jury is now wondering why they are really here. The jury has a general sense of what the case is about from jury selection, e.g., motor vehicle collision, breach of contract, unlawful termination, etc., but what they really want to know is why the parties in the case and their attorneys need them to be sitting in that jury box. A good theme directs a jury to what they should look for and shapes the juror’s perception of the evidence that comes in during trial.

Trial attorneys spend hours reviewing documents and deposition transcripts, preparing examination lines, and attending conferences with their experts. However, significant time should be spent on strategizing and developing a strong theme for trial. A good theme is separate and apart from a good defense. For example, in a premises liability context, a defense may be that a dangerous condition was open and obvious when a plaintiff broke her ankle at a construction site. The theme, however, is that the plaintiff should take responsibility for her poor decision that morning when she woke up, chose to put on a pair of four-inch heels, and visited her boyfriend at a construction site. Her broken ankle was the direct result of her poor decision that morning—that is why the jury is here.

A jury should be made aware of the theme from the moment the attorney opens his mouth during jury selection, throughout the course of trial when the attorney is examining witnesses, to the time the attorney gives his final thoughts on closing argument.

A good theme is one that is universal and transcends all socioeconomic backgrounds, race, religion and political views—which is generally the diversity you can expect in a typical jury pool. For example, our law firm recently defended an individual at trial who was alleged to have been driving over 143 mph on the freeway when he collided into the plaintiff’s vehicle. The plaintiff claimed injuries to his neck and back requiring fusions. He denied having experienced any chronic pain to these areas of his body. However, his medical records and history of narcotic medication told a different story. It was clear the plaintiff had lied. However, during jury selection, it was discovered that some jurors felt uncomfortable concluding that a person had been lying and were reluctant to judge someone’s character. We re-worked one of our themes and told the jury that plaintiff was taking advantage of the defendant’s mistake by overreaching and exaggerating his injuries—an indirect way of saying the plaintiff was lying. The choice to take advantage of someone, as opposed to lying, was more of an attack on a person’s choice rather than their character. The theme worked. The plaintiff was seeking over $1 million in economic damages alone. The jury returned a verdict for $70,000.

When the jurors explained how they reached their verdict, they echoed the themes projected by the defense throughout trial. For example, one juror said, “I think the plaintiff was really taking advantage of the system….I did not want to award him anything.” Another juror said, “I think plaintiff thought this was his big pay day.” Another juror was infuriated with the plaintiff for forcing the jurors to sit through trial in hopes of obtaining a large verdict. In other words, the juror was saying he felt the plaintiff was taking advantage of his time. It was striking to see how the jurors had viewed the evidence through the eyes of the defense attorneys, which reinforced the importance of a good theme.

ABOUT THE AUTHOR: Janice Walshok is an associate at Tyson & Mendes LLP. She has experience with conducting civil jury trials and specializes in insurance bad faith, premises liability, and high net worth insurance issues. Contact Janice at 858.263.4121 or jwalshok@tysonmendes.com.

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