What is Your Trial Theme? To Kill a Mockingbird

 

A PERSUASIVE STORY for trial has all of the same ELEMENTS of a MOVIE SCRIPT

We are going to the movies for lessons about trial advocacy. 

We are exploring how a persuasive story for trial will have the elements of a good movie script. A good movie has a good theme, and the same goes for your trial story. 

A good theme is one that sums up what the case is about—This “case is about ____” Ten years after their jury service if asked what the case was about, they will recite your theme. A good theme crystallizes the human values and needs of your trial story. It is a hook the jurors remember

The following are common trial themes:

• Power and control

• Accountability

• A uniform is only as good as the man or woman who wears it

• Innocents don’t conspire

• Trust and betrayal of trust 

Themes are essential to storytelling.  Movie advertising tag lines can provide excellent jumping off points for coming up with trial themes:

• “With great power comes great responsibility.” (Spiderman) 

• “It was the Deltas against the rules… the rules lost!” (Animal House) 

• “Somewhere, somehow, someone’s going to pay.” (Commando) 

• “The truth is out there.” (The X-Files) 

• “There are degrees of truth.” (Basic) 

• “He was never in time for his classes… He wasn’t in time for his dinner… Then one day he wasn’t in his time at all.”

(Back to the Future) 

• “He’s out to prove he’s got nothing to prove.” (Napoleon Dynamite) 

• “The truth can be adjusted.” (Michael Clayton) 

• “In the heart of the nation’s capital, in a courthouse of the U.S. government, one man will stop at nothing to keep his honor, and one will stop at nothing to find the truth.” (A Few Good Men) 

• “Some people would kill for love.” (Presumed Innocent)

• “Some people will do anything for money.” (The Fortune Cookie)

• “The first scream was for help. The second is for justice.” (The Accused) 

To Kill a Mockingbird was published in 1960. the Library Journal named it the best novel of the century. Seldom does the movie match up to the book upon which it is based, – but, in this case, it does. The 25th in the American Film Institute named it the greatest movie of all time and named Atticus Finch the greatest movie hero of the 20th century.

The phrase “to kill a mockingbird serves as a great example of a theme because it encapsulates what the story—the movie is all about.

Watch how the theme is introduced early on in the movie.

Formulating Your Trial Theme for Closing Argument

 

The Trial Theme in the prosecution of defendants Skilling and Lay in the Enron case

What is your trial theme?  This is part of a series of articles regarding how to construct and deliver closing argument. The prior post examined how to begin your closing with an attention step. Here, we shift to the body of the argument.

Common topics for the body of closing argument are as follows:

• integrating the case theory and theme

• issues in dispute 

• a discussion of the law new 

• applying that law to the facts 

• refuting opponent’s arguments discussing case weaknesses 

• discussing missing evidence and or witnesses 

• witness credibility 

• expert witness testimony 

• circumstantial evidence 

• damages

The case theory is a combination of your legal theory and your factual narrative. Your factual narrative should be about a human being, appeal to the jurors’ values, and concern the deprivation of a human need. Your case theme is the hub of your case around which everything else revolves. The theme should be short and via crystallization of your case theory.

The Enron trial serves as a good illustration of the integration of case theory and theme. The case involved two people at the head of Enron corporation Ken Lay and Jeff Skilling.  Lay once was one of Houston's most respected power brokers and philanthropists, Enron's ex-chairman and long-time CEO commanded his employees' loyalty far longer than other executives. Now, in the Enron case, however, he's defending himself against charges of incompetence. Much of the blame for Enron's problems has centered on the Jeff Skilling- the man who took the company away from pipelines and into new frontiers in power trading and marketing. His abrupt resignation after six months in the CEO job started speculation that quickly turned into scandal.

Kathryn Ruemmler 

Enron Task Force prosecutor Kathryn Ruemmler’s Theme was: "There's nothing wrong with getting rich.  But what you can't do is you can't get rich by deceiving. You can't get rich by cheating." Ruemmler, sometimes pacing before the jury during her four-hour closing argument, laid out the case theory, saying that the victims of the deceits of Lay and Skilling were shareholders — real people "deprived of the truth."

In rebuttal argument, prosecutor Sean Berkowitz reiterated the theme: “They lied to their investors.” He said, “Senior management had been lying to the public for years. . .  Enron could not handle the truth.”

Content of a Compelling Opening Statement

This post, like the prior one, is dedicated to how to select the content of your opening statement, which at its core is storytelling. The first post on the content of opening statement concentrated on telling a human story, which is usually a story about your client. This article covers four other components of a compelling opening statement story.

The second essential of the opening statement story is that it should be about values and needs. It should be about the values we all share. Values the jurors care about. Those values include such things as family, personal safety and integrity. 

All our trial stories are about the deprivation of human needs. Either setting things right because of a deprivation – someone was injured for example or preventing someone from being deprived – for example losing their liberty or being unjustly held liable. Simply put, it’s a story of good versus evil – a David against Goliath story. Typically, your client is David.  Your client is the one the jury should root for.

Ideally, the opening statement story is about a hero’s journey. Your client’s journey. Joseph Campbell famously wrote and spoke about the hero’s journey. It is the story of mythology in which the hero sets out on a journey but encounters an ordeal. We root for the hero to overcome the ordeal and succeed in the end. The hero’s journey is so familiar to us-think: Jaws; Star Wars, or Wizard of Oz

Here is an example of opening during which the trial lawyer recounts the hero’s journey story. In Novell v. Microsoft, the plaintiff’s legal theory was that Microsoft committed anticompetitive acts to undercut Novell’s WordPerfect word processor software and thus gain an unfair advantage for Microsoft’s software. Novell’s lawyer said this in opening statement:

“Novell wanted nothing more than to compete on the merits of its products. Microsoft, however, had other plans.  Microsoft, as you were told yesterday, has a monopoly in operating systems.  The evidence will show that Microsoft was threatened by Novell's applications and middleware products and took anticompetitive actions against those products in order to protect its operating systems monopoly. Instead of competing with Novell on the merits, Microsoft engaged in deception, a classic bait and switch where Microsoft offered Novell and other application developers some very exciting and important technology and then pulled the rug out from under them.  Microsoft did this in order to tilt from [sic] the playing field in Microsoft's direction.”  

Third, for the story to be compelling, it must be credible. A story is credible if it comports with common experience of the jurors.  For instance, jurors can understand the theft of intellectual property if it is a story of theft. The story must also be supported by credible evidence.

The fourth and final component of an opening statement is that it contains a theme. It can be challenging to find the perfect theme for your case. You will know the perfect theme when you find it. A good theme expresses the core idea of your case theory. That theme should be just a few words, ideally one sentence. That theme should be simple, clear and memorable. It should be familiar to the jurors. And it should not be susceptible to backfiring. For example, if you use a baseball theme, it is likely opposing counsel will find a way to say you struck out.

The following are themes that trial lawyers have found tried and true:

• Power and control—for example in a domestic violence case

• Accountability—many applications for this one, such as in a negligence case

• A uniform is only as good as the man or woman who wears it—police corruption

• Innocents don’t conspire—a conspiracy case in which a conspirator testifies

• Trust and betrayal of trust—child abuse

• Fair play—many applications for this one, for instance Novell v. Microsoft

• Having a scapegoat—classic defense theme

• Misplaced blame—product liability case

• Broken promises—for example in a breach of contract case 

• Ignoring the consequences—again, product liability

• A deal is a deal—again, a contract case.

In sum, the content of a compelling opening statement is composed of a human story about human values and needs that is credible and all tied together with a theme.