Without a theme, your case is just information: facts, claims, exhibits, instructions, and witnesses. It may be legally sufficient, but without a simple and central message to tie it all together, it is not persuasively sufficient. Experienced trial lawyers may be of one mind when it comes to the importance of a theme, but in my experience, there is quite a bit of variety in approaches for coming up with one. For some, it is a matter of creativity, inspiration, and "You'll know it when you hear it" recognition. For me, though, the right theme is a matter of working it out. A good theme probably won't be a bolt from the blue, it will instead be something that you've developed and crafted with a lot of different criteria in mind. After all, your theme needs to be something that doesn't just speak to you, or to your favorable audience, or to one aspect of the case. Instead it needs to communicate your case holistically and it needs to resonate.
That goal, finding language that resonates, can be an elusive one. A team of academics researching the characteristics of moral values, however, offers some practical help. A few days ago, while researching another post, I stumbled on something called the "Moral Foundations Dictionary." Calling it a "dictionary" is probably an oversell: It is just a list of words with primitive formatting, allowing the list to be easily incorporated into content analysis software. Those words, however, have been demonstrated to track with the five universal moral values of care, fairness, in-group affinity, authority, and purity. The authors (Graham, Haidt, & Nozek, 2009) made the list available so it could be a resource for social scientists who are analyzing speech or text in order to determine its moral emphasis. But the list can also serve as a useful heuristic device for anyone who is looking for the right word to convey a particular moral idea. It is also a handy reminder to think about the moral values that are conveyed in language. In this post, I'll share a few steps for working toward a theme using the Moral Foundations Dictionary as inspiration.
Step One: Pick Your Moral Foundation(s)
The idea of a finite list of common moral values comes from moral foundations theory. This branch of social science research started with the work of NYU psychologist Jonathan Haidt, reaching a wider audience with his book The Righteous Mind. The work has explored the notion that humans think about morality on the basis of five (or more) common foundations, and those basic foundations both unite us (because nearly all people buy into them to some extent) and divide us (because different cultures and political groups put different emphasis on different foundations). As I've written before, an understanding of these foundations can be useful in understanding audience adaption. The five most common moral foundations are as follows:
- Care Versus Harm: We seek protection and we oppose harm to ourselves or others.
- Fairness Versus Cheating: We seek justice based on shared rules and we oppose attempts to evade those rules.
- Loyalty Versus Betrayal: We stand with our own group and oppose threats to that group (also called "In-group morality").
- Authority Versus Subversion: We expect obedience to legitimate authority and we oppose attempts to subvert that order.
- Sanctity Versus Degradation: We want purity and we avoid that which arouses disgust (also called "purity").
Looking at that list, ask yourself what value is supported by your side of the case. If you've done a good job of case analysis, then one or more on that list should rise to the top. In a contract case, for example, your client's position might embody the authority of the signed contract, or center on an avoidance of the harm caused by the breach, or focus on the degradation of what was once a productive working relationship.
Step Two: Find the Words that Build that Foundation
If we decide that we want to focus on authority, then the Moral Foundations Dictionary is going to point us to words like the following:
Of course, there is no great magic to the list; those are the words we would expect in a list centered on authority. But like a series of musical notes that resonate in a common key, these words convey a shared moral language. Combining them (e.g., the contract created a lawful duty, and my client complied with that duty) creates a statement centered on that specific moral foundation.
Step Three: Consider Both the Positive and the Negative Side
It is notable that each moral foundation is expressed as a virtue contrasted with a vice. From the earliest days of Greeks writing about ethics, our views of morality have simultaneously focused on what to do and what to avoid. Lawyers crafting a good trial message are well-advised to follow the same pattern: Focus on both what is good and on what is bad in the moral universe of your case. A litigator's first impulse is often to attack the other side, but a complete trial message also needs to involve a defense of your own side.
Helpfully, the Moral Foundations Dictionary includes separate lists of both "virtue" and "vice" words associated with each moral foundation. So expanding on the example above, the contract litigant might contrast their own deference to the contract with the other party's defiance of the contract.
Step Four: Work Those Words Into Your Trial Message
Once you have a working vocabulary, your job is to boil it down into one or more simple messages that capture the main emphasis of your case. Completing the theme on the contract case appealing to the moral foundation on authority, for example, the ultimate theme might look something like this:
This case is about a lawful contract that was met with respect from one party, and defiance from the other.
Or perhaps, given your audience, you are more interested in appealing to loyalty:
My client entered this contract in order to create a collective interest. Unfortunately, the other party deserted that interest at the first opportunity.
Alternately, maybe the focus is on care or harm:
The aim of this agreement was to secure and to safeguard a mutual benefit. The aim of the other party, however, was to exploit and endanger those benefits.
Those are all simple and straightforward statements, drawing from a meaningful and clear moral vocabulary. They might lack the self-conscious "artistry" that some might associate with a theme (e.g., "If the glove doesn't fit, you must acquit"), but the real test is whether the theme works -- whether you can use it in various ways during trial (witness examination, trial graphics, opening, closing, etcetera) and have it function to call the right feelings to mind.
On that score, inspiration plays a role, but there is no substitute for hard work, both at the stage of developing the language, and at the stage of testing it beforehand.