As advocacy teachers and advocates we thrust “theme” on our students and our audiences [jurors]. We do so with good cause – and we insist that it be embedded in the primacy moment of our presentation. Our students comply – with somber or indignant righteousness they intone the catchphrase of the case, be it the overdone “profits before people” or some alliterative slogan such as “the crash, the calamity, the ultimate cost.” But are they (and we) correct in placing the theme at the front of opening statement? Said differently, is a jury willing to trust the messenger so soon, or does trust need to be earned and the theme statement be postponed?
This question was prompted by a presentation given by David Kwass, a gifted plaintiff’s attorney and advocacy professor. He explained that given jury studies that show an initial skepticism of lawyers and the need for attorneys to gain the trust of their audience, he leaves the theme statement until late/later in the opening statement, letting the factual presentation and its supporting documentation earn the trust we all want and make the theme more sincere and acceptable.
Is he correct? I suggest so.
What do we know about “theme?” Let me start with the world of politics. Hearken back to the advice given to Ronald Reagan – “You didn’t get elected on details. You got elected on themes. Every time a question is asked, relate it back to one of your themes.” And closer to our lawyering home? Lawyers are, rightfully, all about the theme:
- “Legal theories must be combined with a solid moral theme to succeed…The theme provides the moral force that brings the case to life…[and] creates a feeling of comfort…about deciding things your way.” Rose, FUNDAMENTAL TRIAL ADVOCACY, 3rd edition, 58
- “The first step is to have a clear and understandable central theme…[that] must connect with the jurors’ common experiences…[and] connects the facts with the ‘human’ elements of the case.” Perrin, Caldwell and Chase, THE ART & SCIENCE OF TRIAL ADVOCACY 2nd edition, 119.
- Your theme distills your case to a memorable word or phrase that you will repeat throughout the trial.” O’Brien and Gildin TRIAL ADVOCACY BASICS 2nd edition 65.
- “[Y]our theme must appeal to moral force. A logical theory tells the trier of fact the reason that your verdict must be entered. A moral theme shows why it should be entered…[and] justifies the morality of your theory and appeals to the justice of the case.” Lubet and Lore, MODERN TRIAL ADVOCACY 6th edition, 20.
Points well made. But when in the opening should they be pronounced? The suggestion here is to not push the theme in the first 30-45 seconds and instead defer the theme statement until after trust is established. Why? “Audiences judge the communicator’s apparent trustworthiness as the communicator’s inferred motivation to be truthful. Trust most often makes audiences automatically believe in the message’s validity.” Fiske, S. T., & Dupree, C. Gaining trust as well as respect in communicating to motivated audiences about science topics at page 3 (2014) https://www.pnas.org/doi/10.1073/pnas.1317505111 .
Consider what is known about trust of lawyers. If trust is a product of two features – warmth and competence — a suggestion supported by research and detailed in John Blumberg’s PERSUASION SCIENCE FOR LAWYERS (chapter 15), where do lawyers rank? Research raises concerns about
the ambivalently perceived high-competence, low-warmth, “envied” professions: lawyers, chief executive officers, engineers, accountants, scientists, and researchers. They earn respect but not trust. Being seen as competent but cold might not seem problematic until one recalls that communicator credibility requires not just status and expertise (competence) but also trustworthiness (warmth).
Proceedings of the National Academy of Sciences of the United States of America, 111, 13593 at 13595. https://doi.org/10.1073/pnas.1317505111 .
That’s us – high on competence, low on warmth. Recent Gallup polling on “honesty and ethics in professions” showed 28% of respondents ranking lawyers “low” or very low” and 50% as “average” on these metrics. https://news.gallup.com/poll/1654/Honesty-Ethics-Professions.aspx (last visited April 2, 2023). So yes, there are those who view lawyers favorably, but a significant portion who do not.
This point, that trust is lacking at a trial’s beginning, is eloquently made by David Ball:
At start of opening, plaintiff’s attorneys have no credibility with many jurors…[Y]ou must assume that many of the seated jurors come in with a strong primacy of belief: that you (not the defense) will exaggerate and lie. Until you’re well into your opening, your credible looks and tones can’t suddenly wipe out decades of multi-million-dollar tort reform campaigns. “Sure,” say the jurors, “he looks credible. That’s a trick they learn in law school.”
So you must strictly avoid placing your credibility on the table until well into the opening. Don’t ask jurors to trust you until you’ve earned their trust.
DAVID BALL ON DAMAGES 3, 112. Ball advocates against what he terms “premature advocacy,” a point captured in the urging that “[y]our early role is to inform, not advocate.” Id.
Might trust be established across hours or days of jury selection, as the jurors-to-be size up each lawyer? Sure, that’s a possibility. But those encounters may be fleeting. And if trust is not yet earned when the orator intones that lofty theme message, will there be rejection or skepticism rather than a glomming onto these words as the filter for all that follows?
So what’s the alternative? Beyond attire, voice, conduct toward the court and opposing counsel, trust might be engendered by an opening that is factual, comprehensible, supported by facts and documents, and acknowledges weaknesses or concerns. Consider this opening paragraph:
It was June 18th, 2021. Four engineers sat around a planning board, talking about safety devices for the new Model Z car, a family car. The youngest said ‘how about extra crash bars?’ A second engineer said ‘yes, crash bars or at least tougher grade plastic.’ The third stayed silent, and the chief engineer said two words. ‘Too costly.’ That was the final meeting, and that is how the Z was designed – not the tougher plastic, the skin of the car; and not the crash bars.
How will you know that? Let me take you to…
Do jurors need those extra words “profit before people” to frame the case in their minds? Perhaps they may belong at the conclusion of the opening, when the jury is told that at the end of this trial you will be able to conclude that profits were put before people, before families like those of [name of plaintiff]. Trust the research, trust the jury, gain their trust. “Themes” like a good idea.
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 This is modeled on an example provided by David Kwass. His was better – this is intended solely to capture the gist of what he said and illustrate the concept of ‘facts first, theme later.’