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{ September/07/2010 }
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Article 81 Guardianship Prectice: Perspectives From the Bench & Bar
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News & ArticlesAugust/1/2010 Clarence Darrow VignettesCLARENCE DARROW VIGNETTES
In The Chambers - Theories, Themes & Trilogies Part I Wolff and Sienna nestled up to Atticus in his favorite Friday night cubby-hole. Wolff began, "Your use of theories, themes and trilogies as part of your overall campaign of persuasion make the facts crystal clear for the jury - would you share your thoughts involving the use of these creative, powerful and imaginative techniques?" "Preparation, preparation and preparation leads to the primary rule of effective persuasion and communication - you must always follow the KISS principle (Keep It Simple Stupid). Every civil and criminal trial, no matter how complicated or the amount of money involved, can always be distilled to a few important facts that will ultimately determine the jury's verdict. The integral part of your preparation is to pinpoint the critical facts and then establish a theory, associated themes and trilogies that make these facts come alive for the jury right there in the courtroom. The theory and associated themes you develop must account for all the critical facts the jury will find during their deliberation. Every case will have at least one bad fact that you cannot explain away. This is what we call a fact beyond change (FBC). You can't run from FBC's or pretend they do not exist. Your theory of the case must explain, adopt or neutralize FBC's. Do not spin your wheels trying to explain away a fact you cannot credibly eliminate. Integrate the FBC's into your case theory and themes and adopt them as your own. Confronting negative FBC's head on turns these facts into believable support for your theory of the case." As Atticus slowly sipped on his Woodford Reserve on the rocks, Sienna asked, "What is the difference between a theory and a theme?" "The theory is the ultimate statement of the reason why the jury should find in your client's favor. People see things according to the way they want the world to come out. As the central persuasion equation, you are engaged in a trial long endeavor which grinds the lens through which the jurors will process the evidence. The ultimate persuasion edge comes from a simplified theory which embraces the dominant storyline facts and the dominant storyline emotion. A simplified theory makes your jurors virtual eyewitnesses to your facts. Persuasion involves a trial long endeavor to expose at every opportunity your theory of the case. Your theory of defense should be clear, concise and repeated from the moment you begin jury selection. Examples of a theory of the case are: * Jane Smith fired the gun in self-defense. Your defense theory, developed and presented simply and clearly, guides everything you do in the courtroom from jury selection, opening, cross/direct examinations until your summation." "For example, in brainstorming your theory of the case, understand that trials are story-telling contests - whoever tells the most persuasive story wins. In order to succeed at trial you must develop your legal theory into a story and tell your story, factually and emotionally, in a way that the jurors will agree and identify with. In contrast to your theory of defense, themes are not the legal reasons to acquit. Themes are ideas which are a collection of congruent and orienting principles that run through a case. Themes are factual, commonsensical and often tinged with emotion. Your brainstorming should develop themes that are salient and recurring. Like your theory of defense, your themes should be communicated to the jury from the moment you first speak with them. Examples of themes are: * Children are not liars but they are not truth tellers either. Themes provide powerful, cohesive and narrative structure to your effort to communicate and persuade. Themes are ultimately incorporated into the trial as a memorable refrain which drives home the defense theory. Repetition is a powerful device. A carefully chosen refrain which is forceful, concise and consistent creates a lasting impression in the collective mind's eye of the jury. Carefully crafted theory and theme create congruence of message and messenger which assists in having the jury think along your lines." Sienna asked, "What is your ultimate goal in brain-storming both theory and theme?" Atticus softly intoned, "Your theory of the case is the strategic explanation that covers all of the vital facts and excludes everything that does not forward your view of the case. If a witness has helped your theory or has said something that creates a useful theme refrain, why would you ever impeach that witness even if you have highly damaging impeachment material. Your theory of the case controls your opening, closing and your order of trial/witnesses. Your themes dictate the key words you use, which questions you ask, your tone and your emotion. As the ultimate persuasion equation, you must decide, based on your theory and associated themes, how you want the jury to view and feel about you, the prosecutor, the judge, your client and ultimately your cause. Every trial endeavor you engage in must be congruent with your theory and themes and the human emotions associated therewith. Every presentation is the ultimate challenge in the art and science of applied courtroom psychology. The only limit is your imagination." Wolff chimed in, "Quite often you use trilogies. I remember veni, vidi, vici (I came, I saw, I conquered) from my high school days. How do you integrate theory, themes and trilogies?" Atticus responded, "See you next month." |
 
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