Themes and persuasion.

• Author: Van Patten, Jonathan K.

The search for the right theme is one of the most critical tasks facing a trial lawyer in presenting a case to a jury. Human beings do not absorb facts in the abstract. The theme gives them the necessary perspective to understand the evidence. If the plaintiff attorney does not provide jurors with the right theme, the defense will, or jurors will do it for themselves. The most powerful themes appeal to a broad spectrum of humanity and tie into people's basic needs. Themes are the core ingredient of great literature, plays, and cinema--and of winning cases. (1)

1. INTRODUCTION

   There is widespread agreement that themes are important to the task of persuasion. (2) A good theme brings conciseness to an argument, provides a lens or filter through which to evaluate evidence, and ties into core values that may move the decision maker into agreement and even over into advocacy. Themes have organizational power--they collect certain pieces and discard others, provide guidance in sequencing, influence word choices, supply continuity, and generally shape the argument, often through a story that ties the particulars to the moral center of the argument.

   A theme is a short statement, often one sentence or shorter, of why one should win. They are like "sound bites" with a sense of urgency. They range from the familiar ("In the eyes of the law, the defendant is presumed innocent."), to common sense ("One should not complain about a problem that was created by one's own actions."), to metaphors ("Truth is sometimes toxic, like water to witches."), to irony ("The greatest of all Hollywood lies is that villains look the part. Nothing could be further from the truth. All really evil villains are beautiful at first." (3)), to dramatic ("Great nations, like great men, should keep their word." (4)), and even to the exotic ("It's like Michael Jackson's nose--the more they try to correct the previous mistake, the worse it gets." (5)). There is a great deal of power and wisdom in these pithy expressions.

   Themes may be found everywhere--in the Bible, in literature, in popular culture, and in the ebb and flow of daily life. They are most easily found in collections of quotations. The most famous quotation about quotations comes from Winston Churchill:

   It is a good thing for an uneducated man to read books of quotations. Bartlett's Familiar Quotations is an admirable work, and I studied it intently. The quotations when engraved upon the memory give you good thoughts. They also make you anxious to read the authors and look for more. (6) For legal argument, the best collection of themes, by far, is Thomas Vesper's Uncle Anthony's Unabridged Analogies: Quotes, Proverbs, Blessings & Toasts for Lawyers, Lecturers & Laypeople. (7) This is one of the essential books for the lawyer's library. (8) One could have a reasonably productive and successful career on the basis of these sources alone. But there is also value in thinking about an argument without dependency upon the thoughts of others. Not only may there be a temptation to jam the "square peg" of a great quotation into the "round hole" of an argument, the important process of discovering the moral center of the case may be shortened or bypassed altogether. In fact, locating the moral center of the case first should make the search for the fight theme drawn from the collections more productive.

   This Article will describe how to locate the moral center of the case and thereby discover themes that may provide a better fit for the evidence and the argument. Because themes are mini-arguments, it is also helpful to understand the structure of arguments. The identification of arguments through classical rhetorical learning will lead to the discovery of additional arguments to make in a particular case. The Article will conclude with specific suggestions for the use of themes to reflect the moral center of the case.

2. FINDING THE MORAL CENTER OF THE CASE

   Themes should reflect the moral center of the case. What the case is about in its simplest terms should be cast as a moral imperative. Contract cases, for example, are usually based on the proposition that "promises should be kept." For torts cases, it might be: "We are asking you to right a wrong." In a criminal case, it might be: "Before the government may imprison someone, it must play by the rules."

   Explicit consideration of morals to help shape the case is becoming more fashionable. (9) This has not always been so. Morals talk, especially in the political context, makes some people very nervous. (10) Perhaps a legacy from the 1960s, and perhaps also related to an aversion to rules generally, the implicit prohibition of morals talk is a self-limiting restriction that inhibits complete analysis of the case. Whatever understandable reservations one might have about mixing morality and politics, (11) these habits should not be carried over into the realm of advocacy.

   It might be argued, however, that any explicit resort to morality that is grounded in non-sectarian terms would be so general as to be useless. But one of our founding documents, for example, speaks in non-sectarian terms and manages to provide understanding and guidance for particular problems:

   We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed. (12) In writing these words, Thomas Jefferson said that he was attempting to express the basic principles of "the American mind." (13) In terms of providing guidance, Abraham Lincoln stated that he derived all of his political principles from this portion of the Declaration of Independence. (14) The point here is that general principles, provided that they are good principles, will lead to themes that will resonate with people because of their inherent soundness.

   It is in this sense that the following observation of Justice Michael Musmanno was made:

   As much as the law world may assume that law consists of a game in the abracadabra of words, and as much as that assumption may have been true in Shakespearean days, it is reassuring to note that the law of today aims at realities and the achievement of a justice which will appeal to the reason of the most unlettered man on the street. Law is simple justice in action. (15) This appears, at first, to beg the question. That is, how do we know appealing to the reason, opinions, and prejudices of the man on the street will achieve justice? This passage presupposes a moral base that is part of, and in fact helps to define, the community. It may not always be possible to find a common moral base. That may say something about the community. (16) Still, one should look for it.

   A good place to start is to identify basic character traits that generally garner agreement as positives, such as trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, (17) thrifty, brave, clean, and reverent. (18) If one were to ask a person how a close friend would describe his or her character, using only adjectives, many of these traits would probably come up. In fact, I have used this technique during voir dire of prospective jurors. Even though the descriptions might have been edited or shaded favorably for that person, that is okay, because the statement is usually revealing of the juror's own values. Other character descriptions that emerge are honest, reasonable, hardworking, passionate, open-minded, humble, deferential, opinionated, sarcastic, humorous, and fair. Not only are these descriptions revealing of the mindset of a particular juror, but some of these traits can be incorporated as themes for the closing argument. Think of the jury panel as your last focus group before trial.

   The attempt to express the common sense of the problem may in fact expand the advocate's view of what is possible for persuasion. An example of this may be found in the story of David, Bathsheba, Uriah, and Nathan. King David lusted after Bathsheba, who was married to Uriah the Hittite. David slept with Bathsheba while Uriah was away at war. Bathsheba became pregnant with David's child. In order to cover up the affair, David summoned Uriah from the front lines and set up several opportunities for Uriah to sleep with his wife. Uriah chose not to, because he viewed it as being disloyal to the men who were still serving at the front. When this attempt to provide a cover failed, David sent Uriah back to the front with explicit orders to put him in harm's way. Uriah was killed and David married Bathsheba, who then bore David s child. (19)

   How does one persuade a powerful king that he had done something wrong? The LORD sent Nathan to David. When he came to him, he said, "There were two men in a certain town, one rich and the other poor. The rich man had a very large number of sheep and cattle, but the poor man had nothing except one little ewe lamb he had bought. He raised it, and it grew up with him and his children. It shared his food, drank from his cup and even slept in his arms. It was like a daughter to him." "Now a traveler came to the rich man, but the rich man refrained from taking one of his own sheep or cattle to prepare a meal for the traveler who had come to him. Instead, he took the ewe lamb that belonged to the poor man and prepared it for the one who had come to him." David burned with anger against the man and said to Nathan, "As surely as the LORD lives, the man who did this must die! He must pay for that lamb four times over, because he did such a thing and had no pity." Then Nathan said to David, "You are the man!...." Then David said to Nathan, "I have sinned against the LORD." (20) It should be apparent that a straight-forward denunciation of David's behavior would have been unavailing. He was a powerful king...