Keeping With The Theme

SharonBerman Cropped lo res

I recently attended an Association of Business Trial Lawyers panel discussion on a subject that is of as much interest to lawyers as it is to marketers like myself: messaging.

The discussion, titled “Learning from the Masters: Developing Case Themes and Using Them to Win at Trial,” featured speakers Brian Panish, of Panish Shea & Boyle LLP, and Linda Miller Savitt, of Ballard Rosenberg Golper & Savitt, LLP, and was moderated by the Honorable Holly E. Kendig, of the Los Angeles Superior Court.

Trial lawyers use “themes” in trying their cases for many of the same reasons that we marketers use them in our work: They help you communicate the message you want to send in a memorable and distilled form. As Mr. Panish pointed out, jurors almost certainly won’t remember all the witnesses and documents—but they might well recall an effective theme. Ms. Savitt concurred, jurors, are like dry sponges: They don’t absorb what you tell them until you repeat it several times, so lawyers should introduce the theme early and iterate it often.

What is a theme, exactly? A theme, Mr. Panish explained, should tell the “story” of your case in a kind of tagline. Sometimes, Ms. Savitt added, the theme is immediately obvious; other times, it emerges during discovery. However the theme comes to you, once you have it, it can be used to shape the meaning of the case—and prevent opposing counsel from shaping it. “I never try the plaintiff’s case,” Ms. Savitt said. “I try my case.” She gave as an example a case where she represented a company being sued by a woman who claimed she hadn’t been promoted due to gender discrimination. The story opposing counsel told was that the plaintiff had hit the “glass ceiling;” the company—Ms. Savitt’s clients—wanted to tell the story that the plaintiff hadn’t been promoted because she was difficult to work with. However, after learning through discovery that the person the company had hired in the plaintiff’s stead had worked for a competitor, Linda saw an opportunity and told a different story: that the plaintiff hadn’t been promoted because the company needed to hire the competitor’s employee, as a competitive move. Thus, Linda was able to make the case about a business decision, rather than about gender or personality, and the jury sided with her.

In discussing themes, the panelists also offered a handful of pearls on trial lawyering, including:


  • Address, rather than ignore, the facts opposing counsel is likely to raise. Ignoring the opposing side’s points, Mr. Panish said, will only cause you to lose credibility with the jury, while addressing them will help neutralize any threat they represent.


  • Accept some responsibility when your client bears some responsibility—again, to improve your credibility with the jury. If your client was jaywalking, Mr. Parish said, admit they were jaywalking to avoid a greater charge.


  • If you’re defending a corporation, try to personalize it. Mr. Parish said the best example of this he had ever seen was a lawyer who was defending Merck but, when talking about the company, would always say, “the men and women of Merck.” Ms. Savitt added that talking about the employees of a company helps put a face to the business.


-By Berbay Principal Sharon Berman

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