Remember the 2013 Winsor Mock Trial Team that won the state championship? A few weeks ago we traveled to Indianapolis, Indiana to compete in the national tournament. The national tournament is an intense academic exercise, and also a ton of fun. Every time I go to nationals, I am reminded of my own experiences as a student competitor, when my team came within a whisker of making the final round and a first- or second-place finish. (As it was, we finished 3rd, 3rd, and 5th in my sophomore, junior, and senior years. But I don’t like to brag about it.)
We were robbed, of course. It’s the mother of all “bad beat” stories. To prepare teams for the possibility of somewhat … uneven … judging, I usually tell the bad beat story (known as “The Texas Story”) the night before the tournament starts. Not to discourage them, mind you. Just to prepare them for heartbreak.
This year when I told The Texas Story, it had precisely the intended effect — some shock, but mostly gritty resolve to put their best foot forward and let the chips fall where they may. Girls who hadn’t been born when the trial took place were retroactively begging one of my teammates not to quit mock trial after the debacle. (Alas, they were roughly 22 years too late.) The next day, one of them paid me a nice compliment: “You’re a very good storyteller.” I thanked her, of course, rather than voicing my initial reaction, which was, “Well, it is what I do for a living ….”
I’m not talking about writing fiction, of course. That’s a mistake only bad lawyers make. But there is an art (and science) to organizing information in a compelling way so that a fact-finder — a judge or a jury — will understand the nuances, respect your client’s choices, and, ultimately, have sympathy for the client’s predicament. There are countless articles about “telling an effective story at trial” (indeed, I received an e-mail with a link to one while drafting this post), and it’s a topic that I will probably come back to in the future, but for now I want to focus a bit on the importance of selecting a good theme as part of trial strategy.
So … What’s a Theme?
The word evokes a few possible meanings, all of them helpful in understanding why you need one at trial. The most common use is probably the musical one — “a short melodic statement from which variations are developed” (thanks, Dictionary.com). Within that general usage, we tend to think in cinematic terms — the theme from Jaws, the Godfather Theme, the Theme From (god help me) A Summer Place. This is an almost perfect analogue for what we want a trial theme to achieve. It must be memorable, it must evoke a specific feeling, and, ideally, it should be capable of at least some modification so that it doesn’t become stale with repetition.
(Before we leave the musical meaning, I am obligated (because I am one of them) to note that when you mention “Theme” to a Phish fan, you might start a debate on which live performance of “Theme From the Bottom” is best. I’ll spare you the extended discussion, but 2/16/97 is pretty good.)
Another useful usage is probably out of date, or maybe just regional. These days (around here anyway), we refer to an academic writing on a specific topic that is the result of a school assignment designed to ruin your weekend as either an “essay” or simply a “paper.” But youths in other times (or spaces) called them themes. “We can’t play baseball now, Greg, because Bobby and I have to write a theme for Mrs. Grundy.” (That’s not a real Brady Bunch quote, I made it up.)
For trial, this is not the correct sense of the word, of course. The theme is not supposed to be a full essay, just a condensed version of the main idea. But it’s instructive to keep in mind the reason that an essay used to be called a theme — you’re supposed to stick with one topic. So it’s important not to ask too much of your trial theme. It can’t be expected to cover every concept and argument that you want the jury to understand. Just one topic. (Hopefully the most important one.)
Finally, there is the dominant definition: a motif, a prevailing idea, a unifying principle for an artistic work. This aspect of the word captures the way in which the theme will be used — repeatedly (but not to the point of heavy-handedness), and in order to pull together disparate concepts so that they all participate in communicating a single message. So, with all that in mind, let’s pick a theme.
Mirror, Mirror on the Car, Our Attorney is a Star
While preparing for nationals,the team struggled to select a theme for the plaintiff, which led to a productive (and instructive) brainstorming session.
(You thought I was done talking about mock trials, didn’t you? Sorry. The thing is, many lessons learned from coaching mock trials apply in real trials too. Plus, I can share details about a strategy session without giving away privileged information. So bear with me, and I’ll try to keep the bragging to a minimum.)
The nationals fact pattern was a tort case — a product liability claim against a propane company for providing (allegedly) defective tanks to a theater that burned down when the tanks leaked and caused an explosion. In true nationals fashion, the case was based on a historic event in Indianapolis (the host city), and also wove in facts about the first Indianapolis 500 by having the play at the theater that burned down be based on events surrounding that historic race. The winner of the first Indy 500 won in large part because he drove without a co-pilot. Up to that point, each driver had a passenger who was responsible for keeping the driver informed of the whereabouts of other cars. The inventive driver, Ray Harroun, compensated for the absence of a “riding mechanic” by installing the history’s first rear-view mirror. His car, the “Marmon Wasp,” is a piece of automotive history.
The plaintiff, who designed and owned the theater where the play about Harroun was to be performed, had purchased propane tanks from the defendant in order to fuel a popcorn popper at the theater’s concession stand. An electric popper was not an option, because the room where the popcorn was to be prepared lacked sufficient electrical outlets (not to mention ventilation), apparently due to the owner’s adherence to principles of “feng shui.” So the owner bought a propane popper, and purchased propane tanks from a company that (allegedly) skimped on safety, provided leaky tanks (with rust spots painted over to appear safe), and was, the plaintiff contended, responsible for the fire to the theater.
With those basic facts in mind, we needed a theme for the plaintiff that would unify the arguments in favor of holding the propane company responsible. For tactical reasons, we also wanted this theme to embrace the historical information about the Indy 500 and Ray Harroun — after all, if the driver and his invention were a source of pride for judges from the region, they might like to hear us talk about them a bit, even if they weren’t particularly relevant to the case. If that makes this illustration feel artificial, just substitute “prospective jurors” for “judges from the region”; it’s never a bad idea to consider the interests and passions of your target audience.
Let the brainstorming commence! Here is a selection of items that made it onto the white board while we tried to craft a theme:
- Company turned a blind eye to problems
- blind spot
- “You can paint over the tanks, but the corrosion is still there.”
- “You can paint over the problems, but they won’t go away.”
- Rear-view mirror had a blind spot
- Driver was the theater; propane company in its blind spot
- Plaintiff trying to shift into the fast lane
- Plaintiff on the road to Broadway
- Checkered flags
- Ashes of their dreams
- fire as feng shui element
From these ideas, we crafted the following: “Like Ray Harroun, the plaintiff was in the driver’s seat, on the road to Broadway, but every rear-view mirror has a blind spot, and the defendant was in theirs. The accident that resulted ended the plaintiff’s dream in a fiery wreck.” It gave us an excuse to tell the story of Ray Harroun and the rear-view mirror. It was clever, and pithy, and spoke to an experience that everyone has — driving with a blind spot. We decided it was a keeper, and the team wrote the opening and closing statements around it. Well done, team.
At our first practice in Indianapolis, about 36 hours before our first trial, we threw that theme away and started over.
Because it was fundamentally, irretrievably, flawed.
First, it used a word (“accident”) that has no business in a plaintiff’s theme in a tort case. “Accidents happen.” It connotes the idea that nobody is at fault.
Second, it was vulnerable to a very obvious rhetorical counter-punch: Everyone knows that you are supposed to check your blind spot. Our theme suggested that the plaintiff had failed to used due care, that it should have done more to check on what the defendant was doing. In short, it played right into the hands of the defense, and a clever attorney on the other side could easily use it against us.
Back to the drawing board.
The Answer Is Closer Than It Appears
This time, we started with the element we wanted to keep — the rear-view mirror. To avoid falling into the same trap, we began by focusing on aspects of the mirror that are uniformly positive. Allows you to avoid danger, a reflection of reality, allows you to see what’s behind you…
Allows you to see clearly what’s behind you. Allows you to see clearly what’s in the past.
That’s what a trial is for, right?
We have a theme.
“And, just as Ray Harroun’s mirror allowed him to see what was behind him, the evidence presented here in court will allow you, members of the jury, to see clearly what happened in the past, and understand exactly what caused this fire.”
Is it perfect? Probably not. But hey, we were short of time. And besides, it achieved what we needed:
- An opportunity to talk about Ray Harroun;
- A subtle emotional pull that the fact-finder is familiar with (checking a rear-view mirror for potential dangers); and
- A flexible element to organize the evidence presented.
End of story, end of illustration, end of blog post, right?
Then why am I about to talk to you about peanut butter?
Your Theme Is Analogous / Your Analogy is Thematic
Let’s not forget the other side of the case. In mock trial tournaments, you represent both the plaintiff and defense (at different times, of course). But while our defense team had its own theme (something about the plaintiff being a dreamer, and the resulting fire being her nightmare), the best rhetorical punch was an analogy that we added to the defense’s closing argument in the middle of the tournament. Analogies and themes go hand-in-hand, of course — both are storytelling tools designed to get the fact-finder thinking about the evidence in the way you want. But where themes are descriptive, self-contained, and complete, an effective analogy invites the audience to reach a conclusion on its own (albeit an inescapable conclusion, if your analogy is set up correctly).
The defense’s contention was that the theater employee in charge of the tanks had been frustrated when he couldn’t get the valve to open, that he had hit the tank with a wrench in order to get the valve unstuck, and that the blow from the wrench caused the gas leak that led to the explosion. The employee admitted using a wrench on the valve, but claimed it was just a little tap, not the severe blow that the defense claimed.
When we represented the defense, the moment that the wrench made contact with the tank was the entire trial. The jury would either believe that the employee (who was alone at the time) had been frustrated enough to whack a cylinder filled with explosive gas with a blunt metal object, or they would reject our theory of what happened. How do you make a jury believe that someone would do something so foolish?
Our solution: Put them in the employee’s shoes. Of course, even if you asked the jury to imagine being fed up with a sticky gas valve, you probably won’t succeed — most of them haven’t been in that situation, and would probably believe that they would exercise greater care than that if they were. So you do the next best thing — you think of a situation they probably have been in, one in which we all have done something stupid out of frustration.
(Only instead of olives, we conjured an image of a stuck jar of peanut butter. Olives, while popular in stock photos, are too high-brow to serve as an example that speaks to a wide audience. Peanut butter, on the other hand, is usually handled by people when they are young and foolish, which is what we wanted them to think about.)
In what became known as “The Peanut Butter Closing,” the analogy quickly swallowed the theme in rhetorical dominance. The attorney reminded the jury how frustrated the employee was with the valve, how much time pressure he was under, how he dreaded the prospect of disappointing the boss on opening night, and how he admitted that, in that moment, he reached for his wrench. Then she invited the jury into the mind of the employee, and let them fill in the blank in the action.
“We’ve all been there, haven’t we? Trying to get a jar of peanut butter to open that just won’t budge? And in that moment, out of frustration, we might do something rash. We might take a knife to the jar, or even bang it against the counter. The only difference is, when you use too much force in your kitchen, you might end up with a mess. When you use too much force on a tank of pressurized, flammable gas, you get an explosion. Members of the jury, you all know what happened when the plaintiff’s employee was alone with the tanks, and it is the essence of contributory negligence. He caused this explosion, not any negligence by the defendant.”
And that’s the essence of good storytelling. Picking the scene that defines the conflict, tearing it apart into bite-sized pieces that lead up to the moment that matters, and then arming the audience with the ability to relate to that moment in the way that you want them to, based on some version of their own experience. Once the audience is in the right frame of mind, so that there is only one logical ending — however unfortunate, however tragic — you need to let them reach the final conclusion on their own.
If you tell the story right, they might even agree that you got a bad beat at the hands of Texas, two years in a row.