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a compelling theme should be the backbone of every trial strategy. A trial theme allows a lawyer to present evidence in a manner designed to educate and, ultimately, to help persuade jurors to assemble facts in a client's favor. It provides a jury with a context within which a story may unfold and be understood. Without a strong theme, a jury will find it difficult, if not impossible, to comprehend the events that are so familiar to trial counsel.
Articles addressing how trial counsel can develop and incorporate a strong theme into the trial strategy are abundant. This article seeks to expand this process of developing a theme early in the case and weaving it throughout a trial presentation by ing and combining two concepts that have received much attention in recent years: (1) "thin-slicing," or the act of reaching immediate, unconscious conclusions that influence behavior, as articulated in Malcolm Gladwell's bestseller Blink;1 and (2) ideas, explored by Chip and Dan Heath in Made to Stick.1 1 believe that understanding these concepts and using the psychology underlying them to shape a trial theme and incorporate it into a trial strategy may well have a significant impact on the ultimate success or failure of a client's case. Indeed, these cepts are undoubtedly already at work without the jurors, witnesses, trial counsel, and judge - the key players in a trial - even being aware of them. Given this fact, why not gain a greater understanding of concepts and employ them to a client's advantage?
What Is Thin-Slicing?
According to Gladwell, thin-slicing "is a critical part of rapid cognition" that "refers to the ability of our unconscious to find patterns in situations and behavior based on very narrow slices of experience."3 Gladwell provides readers with numerous examples of how people in a vast array of circumstances "just knew" something without being able to explain how they knew it. One long-time tennis coach could predict with nearly 100 percent accuracy whether a tennis player would double-fault when serving. Or a psychologist could predict very accurately whether a couple would still be married after 15 years by ing them converse on a topic important to their marriage for just one hour. Gladwell also references the many art experts...