Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

I’ve shared before on these pages that I decided to learn music at an age where most people have either mastered their musical instrument or made peace with their inability to play one. Prompted by my daughter’s interest, I decided to have a go at guitar a few years ago, and with the help of a trusty travel guitar, I’ve stuck with it. I am able to keep up with the kid (which is the important thing), but I’m also now able to do some rough improvisations and stay in key (mostly). So my teacher decided it is time for some more advanced stuff. “A solo,” he intoned, “is not just about playing notes.” Rather, he said, “it is about creating and developing themes.” Of course, his use of the word “themes” sparked a connection with my day job, and led me to some parallels in the ways music captures and holds interest, and the ways the spoken word needs to do the same. The word “theme,” of course, refers to a central subject, and musically it is a phrase that is introduced, repeated, and varied in order to hold together a broader piece of music. In persuasion, a theme needs to do similar work. After all, in a legal persuasion context, we still talk about the way a theme “resonates” or doesn’t.

My music teacher encouraged me to listen and then take a crack at replicating some thematic solos. He suggested I start with a mid-Seventies song called Ten Years Gone, by Led Zeppelin. Throughout that song, Jimmy Page moves between delicate playing and harder-edged riffs, providing the light and the dark he is famous for. The song also includes a good example of a melodic solo that proposes and unpacks a theme. That’s still out of my reach, but while working on that song, and more broadly working to understand what musical themes mean, I’ve learned a few things that connect the musical theme to the persuasive theme. Specifically, I can hear four similarities.

A Theme Needs Space Around It

For a musical phrase to stand out from the other notes, there needs to be some space around it. As Miles Davis said, “it’s the notes you don’t play, that make the difference.” Similarly, in the context of legal persuasion, your theme needs some space around it to ensure that it is noticed and used as a theme. That is a reason why you use it at a time when it won’t be overwhelmed by details, like in the introduction. It is also a reason for presenting attorneys to bracket their themes using one of the most underutilized of delivery techniques: the pause.

A Theme Isn’t a Theme Until It is Repeated

When Jimmy Page moves into his solo, he isn’t “shredding” (as the kids say), he is working little pieces of melody. About three minutes in (it’s a longer song…this was the Seventies), he introduces a falling pattern of triplet notes. But it isn’t until he does it again a few moments later, that we recognize that as an actual theme. A similar constraint exists for attorneys: It is the repetition that makes for a theme. I’ve seen attorneys use what they consider a theme just once during their introduction, and then say “I guess it just didn’t resonate” when jurors fail to seize on it. The problem is that when it is used just once, it gets lost in all the other things that were said. You can’t sound like a broken record, but when emphasizing your theme, you should emphasize it many times, in many ways.

A Theme Isn’t Usually Just One Theme

At the end of the bridge section in Ten Years Gone, Jimmy Page introduces a lovely little melody that could have been the basis for another song. It doesn’t appear anywhere else in the song, it just cycles through a few times and completes its sole function which is to bring the bridge back into the rest of the song. Litigators might similarly have a need for a special purpose theme. Rather than having just one overarching theme for an entire case, advocates might need several themes that serve different functions. For example, I am currently assisting on a very complex case where it has been a challenge to think of a single theme. So instead, we’re using five themes. They relate well to each other, but different chapters of the story draw upon some themes more than others. Most parts of the story involve two or three of the themes, but none involve all five.

A Theme Evolves

Repetition and variation: Those are the fundamental qualities that allow music to ‘hook’ a listener. A pattern of notes sets an expectation, then the musician plays with the mind’s attention by fulfilling, and sometimes violating, that expectation. The same works for the attorney trying to use words rather than notes to hold and focus attention. Your theme needs to tie the message together, but that doesn’t mean you keep repeating the same message. In jury selection, for example, you might discuss the phrase “individual responsibility,” then in opening the message expands to “There is a zone of company responsibility, and a zone of individual responsibility.” When a witness testifies, that evolves to, “The company cannot require that an individual exercises responsibility,” and in closing the full argument is, “The company was responsible for what it could control, but the individual was responsible for the choice that caused the injury.” The same message over and over again would be just as dull as Jimmy Page playing the same section of a scale over and over again. In this case, the song doesn’t remain the same, and neither should the theme.

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Image credit:, used under license