The Litigator Listens to Song Lyrics
What can the litigator learn from song lyrics?
I recently attended the annual American Society of Trial Consultants conference in New Orleans where attorney Tom McCarthy gave a talk and musical performance demonstrating how Nashville style song lyrics can inform the creation of trial themes. He was a delight.
"Hooks" in song lyrics have a lot in common with "themes" in litigation.
From the time I was a teenager, I have been writing songs. My late sixties "mod squad" singing group, the Common Ground, had a short-lived contract with Columbia records. While my group flopped, Jim Croce, with whom we shared management, made it large, and his hit, "Time in a Bottle" is well known to boomers like myself.
The hook line in "Time in a Bottle," "If I could save time in a bottle...," appears only once in the entire song-- in the first line. It is such a powerful metaphor that it subsumes all the rest of the lyrics. The chorus of the song, which starts, "But there never seems to be enough time / To do the things you want to do / Once you find them," is not the hook. The hook captures the essence of the song the same way that a case theme should capture the essence of the case.
The first line of the Beatle's Eleanor Rigby, "Ah, look at all the lonely people" is the hook. It also repeats several times as a refrain. It immediately draws in the listener by creating empathy for the human condition, while setting the stage for the stories of Eleanor Rigby and Father McKenzie.
Clever is not enough...
A theme in litigation doesn't work because it is slick or clever like the blues song, "If It Wasn't for Bad Luck, I'd Have No Luck at All."
Johnny Cochran's infamous O.J. couplet, "If the gloves don't fit, you must acquit!" may have been clever, but it was successful because it succinctly encapsulated the "truth." It may not have described the "truth" of a guilty client, but it did capture the "truth" of the evidence presented at trial.
The theme, whether a sentence, phrase or word, must perform two paradoxical functions; it must be an absolute derivative of the moral thrust and facts of the case, while at the same time it must generate a subconscious memory of the entire case.
When I write a song, I am reaching for that one line or metaphor that says what the entire song is about. Long ago, before Hallmark got to it, I wrote a song about a woman reminiscing over photos "lost in shoebox memories." In a song about a divorce, I wrote the chorus, "It takes two to love, but just one to say goodbye." In a song about empty-nest parents whose children moved from the rural farm to the cities for work, the refrain goes, "We're a part of a family, a family apart."
When I consult, I am looking for that one line that informs, distills, reminds and tells the jury what the entire case is about.
Remember that your theme must be "thematic" for the jury, not for you...
For the plaintiff attorney, it is not thematic to say, "This is case about someone who was injured due to another's negligence." While this might be true, it will not resonate with the jury. Perhaps a fact pattern might better be themed as, "This is a case about, "out of sight, out of mind," (faulty repair causes injury), "trust and betrayal," (in a contract), or "hiding the truth" (product liability), or "inattention to detail" (medical negligence).
For the defense attorney, it is not thematic to say, "This is a case of misplaced blame." While this might be true, it is not meaningful. Perhaps the fact pattern might better be themed as, "right-sizing a company" (wrongful termination), or "words that matter" (contracts).
Like a person once said about art (or was it pornography?), "I can't define what it is, but I know it when I see it," a theme "feels" right when you have it.
When the case theme is right, there is almost an emotional resonance that occurs with it.
Think for a moment about soundtrack music. Even without lyrics, the songwriter finds a musical theme that replays sometimes unnoticed, deep in the background of scenes. Once the emotional association is created, just the slightest reference evokes a consistent emotional response in the audience. John Williams has written motifs like this for literally dozens of films (think "Star Wars" and the 5 note theme in "Close Encounters of the Third Kind"). In Jaws, the audience gets the intended "feeling" with just two repeated notes. When those two notes play, everyone looks for the shark.