By Dr. Ken Broda-Bahm:
If you're going to lose your case, how will you lose? What is the most likely scenario that would have the jurors going in the other direction? That question lies at the heart of a theme approach that I'd like to demonstrate via a short video (below) from a recent conference. A colleague of mine, New York consultant Suann Ingle, calls this approach the "Pre-Mortem" in the sense that asking the "How do I lose?" question can help you win by allowing you to build your best response to that question into your central message. Sure, it is always good to think positive...to an extent. But a theme that speaks to those positives without giving attention to the worst case scenario risks preaching to the choir. That isn't the best role for a theme. Instead, an effective central message for your case should target the higher risk jurors. Based on that "Pre-Mortem," it should make it as difficult as possible for those jurors to take a route that leads them to vote against your case.
At a conference for the American Society of Trial Consultants earlier this month in Asheville, North Carolina, I joined a panel to explore how different consultants would address the same fact pattern. I shared the stage with three of the most experienced consultants in the country: Pete Rowland (of Litigation Insights), Theresa Zagnoli (of Zagnoli McEvoy Foley), and Charli Morris (of Charlotte Morris Litigation & Communication Consulting). I believe that the ASTC will be hosting the video from the whole panel. but in the meantime, I wanted to use my own introduction to illustrate this idea of targeting your worst audience through your theme. This post includes a brief overview of the fact pattern, a video recording of my five-minute introduction, and then a transcript where I include an explanation of why I made the choices I made in the introduction.