By Dr. Ken Broda-Bahm:
Brothers Chip and Dan Heath's Made to Stick book focused on what makes some ideas thrive and persist while other ideas die, and that idea itself has had some stickiness to it. I was reading an ABA Newsletter recently, and Trey Cox applied the idea to trial themes, arguing that in order to be sucessful, a trial theme ought to be simple, unexpected, concrete, credible, emotional, and story-based. That is a good checklist, and it prompted a recollection of an article that I wrote a while back, but never included here in this blog. So, with some thanks to The Jury Expert for the reprint permission, here it is:
By now, the advice to “use a trial theme” is or should be familiar to any practicing litigator. It is intuitive to discover and use a statement that unifies and embraces your view of the entire case. But crafting the right theme involves much more than thinking of a phrase that rolls off the tongue and sticks in the memory. As important as it is for a theme to do both, a theme needs to do more in order to serve the critical function of being that central representation and reference point for decision makers.
A Quick Case Study
How a theme works depends to a large extent on the specific challenges faced by your side in litigation. Just to serve as a running example, consider a fictional employment case¹ in which a female worker, Rhonda Webb, was employed in an otherwise male-dominated manufacturing jobsite at a company, Nordick. Alleging that a co-worker, Frank Wilson, has engaged in an extreme and escalating pattern of comments and unwelcome advances, Webb files a sexual harassment and constructive discharge suit after resigning. In discovery, it becomes clear that the perpetrator considered his frequent sexual comments and occasional touching to fit within the category of “just joking around,” but it also becomes clear that the Plaintiff often willingly participated in workplace horseplay and engaged in an extramarital affair with another employee, her supervisor. It also becomes evident through discovery that many in the company – including managers and human resources personnel – knew of Rhonda Webb’s complaints about Wilson. These complaints were verbal and somewhat informal and Webb did not follow the company's notice policies by making a detailed complaint in writing to either HR or management.