“So, you’re telling me there’s a chance,” Lloyd happily declares in Dumb and Dumber as his dream girl clarifies that his chances of a relationship with her are “more like one in a million” than one in a hundred. It is this same absurd and unreasonably optimistic view that I imagine must drive defense attorneys who rely on the same old, failed defense themes over and over again.
The best defense themes are the ones that grab jurors’ attention immediately and draw them in. They show jurors there is an entirely different world to the case than what they were led to believe in the plaintiff’s opening statement. Most important, they change the value sets that jurors apply to the case, generating skepticism towards everything they hear from the plaintiff.
The worst defense themes do just the opposite. They try to fight battles the defense cannot win (or does not need to win), they focus jurors on problematic aspects of the case, and consequently, they generate general skepticism towards the defense.
Here are three common defense themes that routinely fail:
1. You cannot use 20/20 hindsight. There are decades of studies that have examined the role of hindsight bias in jury decision-making and strategies for guarding against it, nearly all of which show there is really no good way to do so. In fact, numerous studies have shown that efforts to make jurors aware of their hindsight bias and to discourage using it in the form of jury instructions from the judge and/or other tactics like pointing the bias out are ineffective. Bottom line, extensive research shows telling jurors not to use hindsight bias has no effect at all and can actually do the reverse by focusing on the issue that you are worried about.
2. There are two sides to the story. Setting aside the fact that a “two sides to every story” theme inherently acknowledges that the plaintiff’s story might be legitimate, it is also generic and devoid of all motivational power. I have watched hundreds of mock juries deliberate over the course of my twenty years in this field and I have never seen a mock juror fight for the defense because he or she was moved by the suggestion that there might be two sides to this story. The mere fact that you stood up and talked after the plaintiff’s opening statement makes it clear that there are “two sides to this story.” If there really are two sides to the story in your case, just get to telling your interesting side of the story.
3. Be fair and reasonable. The suggestion to jurors that they need to be fair and reasonable implies that you do not think they will be fair and reasonable, and it might not be the best idea to adopt a theme that is fundamentally insulting to your jurors. Jurors work very hard at trial and in the deliberation room even when they do not, in your view, get it right. Even when it is not the case, they have convinced themselves they are being fair and reasonable, so telling them to do so is pointless.
All these common defense themes have the same qualities: they are un-interesting, they instill zero motivation to work hard for you client, and they leave jurors thinking that, if this is the best you have, your case must be pretty weak. It may be that you have a particularly difficult case in which you are struggling to identify a stronger theme that will motivate jurors to want to fight for your client in the deliberation room and, if that is the case, get others involved, get a different perspective, and consider doing some jury research.