In connection withprepration for a trialmy partner and I had a discussion about trial themes and how many items should be listed or relied upon for best communication.Here’s some informationI generated in connection with the discussion.

TRIAL THEMES

There are respected jury consultants who do not believe themes in a trial are necessary or helpful. However, others feel strongly that themes are important. In discussing the issue, we need to make sure we have the same understanding of what is meant by a theme. Often people use theme when they are statements of blame or slogans like "they put profits over safety" or "the doctors just didn’t care" etc.

However, I’m using theme tomeana short statement of what the case is about. For example, if I were to ask you to tell me as briefly as you can what your caseis about what would you say? Your response should tell mewhy you are suing and what the case is about. A theme is not a rule. A rule is a statement about duties of conduct. For example: "You must never needlessly injure another person" is a rule of conduct. The issue is how important are themes. Here’sone consultant’s advice:

"Research in education, communications, psychology, anthropology and cognitive science has given scientific basis to what good storytellers and trial lawyers already know: Themes are critical for helping an audience organize the information they receive and make decisions based on that information.

To persuade a jury, an attorney must develop case themes that help organize the diverse case facts and convey the case theory. Developing persuasive and powerful case themes can be aided by trial consultants who understand themes already circulating in that community and in the general culture that relate to the trial issues."

Susan H. Farina has written an articleDeveloping a Trial Theme That "Sticks" She says:

Acompelling theme should be the backbone of every trial strategy. A trial theme allows for the presentation of evidence in a manner designed to educate and, ultimately, help persuade a jury to determine facts in a client’s favor. This article addresses and combines two concepts: (1) "thin-slicing"the act of reaching immediate, unconscious conclusions that influence behavior; and (2) "sticky" ideas."

Atrial lawyer must strive to capture the jurors’ attention and leave an impression that lasts long after the jury instructions have been given and the deliberations have begun. To be effective, the lawyer must present the evidence, testimonial and non¬testimonial, and his version of the story (by way of the opening statement and closing argument) in a logical and comprehensive manner that allows the jury to process and make sense of it. If the lawyers do not present a logical and believable story of what happened, the jurors will come up with an explanation of their own.

Jurors in a personal injury case are looking for an answer to three basic questions:

• What is this case all about? (i.e., Who got hurt? How?)
• Why did it happen? (e.g., Negligent driving, Defective product, Medical malpractice, etc.)
• Why are we here? (Liability.)

A story must have a theory and a theme. Without a theory, no one will listen; without a theme no one will stay awake. An examination of what a person remembers as being great stories illustrates the importance of theory and theme"

suggest your looking at an excellent websiteThe Jury Expert: http://www.astcweb.org/public/publication/ They published a couple of articles by pyschologist jury consultants pointing out you need more then just rules – you need to involve emotion and other factors. See this article about the need to do more then just "reptile" :

http://www.astcweb.org/public/publication/article.cfm/1/22/4/Reptile-Brain-Mammal-Heart-and-Sometimes-Perplexing-Minds-of-Jurorshttp://www.astcweb.org/public/publication/article.cfm/1/22/4/Reptile-Brain-Mammal-Heart-and-Sometimes-Perplexing-Minds-of-Jurors

As to themes, see this article about one primary and three sub themes which is excellent: http://www.astcweb.org/public/publication/article.cfm/1/22/6/The-Psychology-of-Voir-Dire

THE RULE OF THREE

Every trial lawyer must have read or heard about the significance of three things vs four or more, commonly referred to as "the rule of three." While there are those trial consultants who don’t accept the concept there is considerable evidence that it is a valid generalrule.

There are various explanations why three items are more easily accepted by people then less or more. One explanation is this:

"That’s why you should always remember the rule of three. Maybe you learned about the rule in math or writing class (or in comedy clubs)? If not, a recent issue of Search Insider eloquently sums up the power of the rule of three. As columnist Gord Hotchkiss writes, "We humans tend to think in triplets. Three is a good number to wrap our mind around, and we see it in all kinds of instances. We tend to remember points best when given in groups of three, we scan visual elements best when they come in threes, and we like to have three options to consider. Think how often three comes up in our society: three little pigs, three strikes, three doors on ‘Let’s Make a Deal,’ three competitive quotes. It’s a triordered world out there."

What does this mean? Seven strategies is (four) too many to remember. Nine key messages won’t be retained. If you can’t recite your (three-point) key message in one breath, it’s probably too long.

The rule of three can help you create better communication, and it can also help you manage your stakeholders who want to convey every detail about their stuff. (Who can argue with a "rule"?)

And, once you get attuned to the rule of three, you find that it’s being used everywhere:

In speeches and plays: "Friends, Romans, Countrymen" – William Shakespeare’s Julius Caesar "Blood, sweat and tears" – General George Patton. In slogans and titles: "Stop, look and listen" "Sex, lies and videotape" And even in comedy. As John Kinde writes on his website, humorpower.com, the rule of three is particularly useful in comedy writing because "a funny line . . . is like a train wreck. You know where the train has been, you think you know where it’s going, but then you’re surprised when it goes off track." So the rule of three sets up the joke and makes it memorable. Like the tee-shirt that reads, "World Class Cities: Paris. Rome. Fargo" The third thing is the kicker that creates the joke.

So, to sum up, here are three things to remember about the rule of three: It creates simplicity, aids recall and makes your job easier. What could be better?"

Here’s another supporting view of the rule:

"The rule of three is a principle in writing that suggests that things that come in threes are inherently funnier, more satisfying, or more effective than other numbers of things. The reader/audience to this form of text is also more likely to consume information if it is written in groups of threes. From slogans ("Go, fight, win!") to films, many things are structured in threes. Examples include The Three Musketeers, Three Little Pigs, Three Billy Goats Gruff, Goldilocks and the Three Bears and Three Blind Mice.

A series of three is often used to create a progression in which the tension is created, then built up, and finally released. Similarly, adjectives are often grouped together in threes in order to emphasize an idea."

"What’s so magical about the number three? It’s no accident that the number three is pervasive throughout some of our greatest stories, fairy tales and myths.

It’s also no coincidence that some of the most famous quotes from throughout history are structured in three parts, nor is it surprising that the Rule of Three also works wonders in the world of comedy.

It all comes down to the way we humans process information. We have become proficient at pattern recognition by necessity, and three is the smallest number of elements required to create a pattern. This combination of pattern and brevity results in memorable content, and that’s why the Rule of Three will make you a more engaging writer.

Look at storytelling and the rule of three. Have you ever wondered What the three little pigs, the three blind mice, Goldilocks and the three bears, the Three Musketeers, the three wise men and the Three Stooges have in common? Why the three-act structure is the dominant approach to screenwriting in Hollywood? Why three bullet points are more effective than two or four?

The Rule of Three works in stories due to the presence of the concise, memorable patterns that I mentioned above. But even if that wasn’t the case, the number three has been used so widely throughout some of the most memorable works from our childhood, it’s likely that we are preconditioned to respond favorably to elements grouped in threes."

"The rule of three is powerful speechwriting technique that you should learn, practice, and master.

Using the Rule of Three allows you to express concepts more completely, emphasize your points, and increase the memorability of your message.

That’s the truth, the whole truth, and nothing but the truth."

"So where has all this been leading us? Simply that focusing your message on no more than three significant points, and repeating them in different ways throughout your presentation, is certain to give your presentation the maximum impact. Using The Rule of Three is powerful!"