We’ve written about a country western song before but this is different. And we’re not talking a divorce case themed as a Kenny Rogers song. We’re talking about that sick feeling you get in the pit of your stomach when you see that your case is really mimicking a country western song.

Last month, we worked on a commercial case and although no one in the mock jury mentioned Jerry Lee Lewis, as we drafted the report for our client we suddenly realized that the lyrics to one of Jerry’s greatest hits would say about everything we needed to say. Yes. You guessed it. The plaintiff was just middle-aged crazy.  And once that song starts playing, it is really hard to get out your head! (The Germans call this phenomenon the ‘earworm’ but that is another post.)  And we started to think, what happens when jurors get songs like that stuck in their heads and the only way they can see your client is as a really pathetic country western song? (We offer our sincere apologies to Jerry Lee.)

Fortunately for us, we were working the defense side so we enjoyed the earworm and concentrated on how to tell the story in a way that subtly evoked Jerry Lee (and thereby would undermine the plaintiff’s story). But what if you are not so fortunate and the case you carefully chose suddenly becomes liable to send jurors into fits of giggles or to dismiss your position as silly and “just desserts” for a man who lost his way? Here are some of the thoughts we had on shaking that earworm:

• Change the story. Mark Bennett had a nice post on this dilemma a few months back when he saw a taped outline of a victim on the courtroom floor and that post resulted in a flurry of comments on what opposing counsel might do in this situation.
• Don’t kid yourself.  Reframe it, don’t ignore it.  What does the improved storyline need to be? We can’t know what will work for your next case, but a well-conducted focus group can come up with a dozen potential alternatives for you.  In our case, mock jurors blamed the plaintiff’s much younger paramour for seducing him and leading him astray. It doesn’t take much encouragement for a jury to focus on that sort of dynamic.
• Redeem the hero. Just as Americans love to see our heroes fall, we love to see them redeemed. We’ve blogged about this dynamic here and here. You want a case narrative that shows your client expressing awareness of the relevant social values, insight into the bad behavior and asking (without groveling) for redemption. Like Toby Keith does in ‘Broken Bridges’. What has your client learned from this downfall? How has your client suffered? What does your client intend to do differently in the future as a result of these lessons? Your goal here is not to excuse the behavior (because you know it was bad and the jurors know it too) but to show awareness of the impact on others, insight into reasons it happened and a genuine desire to do things differently in the future.

Of course, it’s best to watch out for sappy themes in the cases you consider taking. But when the story suddenly turns sudsy, you need to think fast about how to shift the focus, reframe the theme, take control of the narrative, and perhaps rewrite the song.

And as a personal aside, neither Doug nor Rita want the timelessness of country western music themes to be taken as a sign that we like listening to the songs.  Well, maybe some of them are pretty good…  They seem to work better at trial than our Beatles collections.

Related posts:

1. Predicting case outcomes? Lawyers are pretty dismal at it!
2. Case Strategy Tip: Do you want your jury to think about their verdict or not?
3. Are dart-throwing monkeys better at predicting case outcome than you?

1. Jessica Bregant says:

   July 18, 2011 at 4:55 PM

   Blawg you should be reading: The Jury Room http://t.co/emswqoc — Today's topic – does Black + Gay = Likeable?
2. Paul Birch says:

   April 29, 2011 at 8:55 PM

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3. Dave Straker says:

   April 29, 2011 at 3:54 PM

   Keene Trial Consulting's 'Jury Room' — blog on persuading juries: http://lnkd.in/Cbs7W9
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   January 12, 2011 at 2:55 AM

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5. Robert Richards says:

   August 8, 2010 at 2:28 PM

   We invite you to visit our firm blog (The Jury Room) for litigation advocacy ideas at http://keenetrial.com/blog/ (via @KeeneTrial)
6. Yosie Saint-Cyr says:

   February 12, 2010 at 3:18 PM

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7. Cynthia Henley says:

   February 7, 2010 at 8:41 PM

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   January 20, 2010 at 1:03 AM

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9. Heledd Straker says:

   January 8, 2010 at 5:52 PM

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10. Chad Piotrowski says:

    January 8, 2010 at 5:24 PM

    RT @KeeneTrial: New blog post: Simple Persuasion Strategies: The Alpha & Omega Persuasion tactics http://bit.ly/U0rhA