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The Advantage Blog

  • Laura L. Dominic


My son woke up this morning and said, “Yay! It’s Friday. Hashtag no homework for two days. Hashtag let the weekend begin.” (That’s a direct quote; he actually said the word “hashtag.”) Then my daughter chimed in, “Hashtag crush Lincoln.” (Referring to tonight’s high-school rival varsity football game.) Now I’m not so out of touch that I don’t know what a hashtag is, but has social media infiltrated our modern day vernacular to the point of transforming it into bite-sized labels of our feelings? The answer is epitomized in the 2013 hashtag parody by Justin Timberlake and Jimmy Fallon on Late Night With Jimmy Fallon.

When I first heard my children’s morning hashtags, I shuddered at the thought that my kids have become walking Facebook posts. But then I started to see the brilliance in it. I didn’t have to hit my kids with a barrage of questions to find out what their day ahead looks like (which usually results in a shoulder shrug or “I dunno”). In contrast, their hashtag declarations told me all I needed to know. The Jury Consultant doing theme development in me noticed that they established the “themes” of the day – No school; no homework; go team.

Hashtags originated in the 70s to highlight special meaning in information technology. Twitter, Instagram, and other popular social media sites brought hashtags to the forefront of our communication. Hashtags make it possible to group messages into similar categories. Social media users can search for a hashtag and retrieve the set of messages that contain it. But hashtags have moved beyond being just a sorting tool. Now hashtags are commonly used on social posts to express moods and feelings. “Heading on vacation with the family” #neverbeenhappier. “Why can’t my kids just share their toys?” #greedy #selfish. These hashtags are used informally to express context around a given message, with no intent to categorize the message for later searching. This can help express emotion, tone, and context. For example, “Just found out my boyfriend is my math teacher’s son” #awkward. “Week two of my diet!!” #excited #sarcasm

Trial themes are similar. Creating your trial themes can be as easy as thinking of how you would hashtag your case since themes are often a short and memorable word or phrase that influences (or changes) the way one views a message. If you think about your case as a Facebook or Instagram post, how do you think you would hashtag it? For example, if you’re defending a hay baling company against a claim that the machine caused the plaintiff to lose his arms, you might have a case about a company with a 25 year history of no accidents and a man who was careless. #perfectrecord, #lookbeforeyoureach. Or maybe you’re alleging that a competitor misappropriated your trade secrets and infringed your patent. Amidst the complicated, technical explanation there are simple ideas. #copycat, #secretrecipe, #makeyourown.

Okay, so maybe you wouldn’t verbalize these hashtags at trial (or maybe you would), but they can become a categorizing mechanism for trial preparation. We often say, “If everything is important, nothing is important,” meaning you can inundate the jury with every fact, document, and line of testimony you have without sending them into information overload (especially in this sound-bite world), if you give them a way to organize the data. This is where your hashtags come in.

Before trial, you can evaluate the use and importance of a document by associating it with a hashtag. Would this document be found in a #copycat search? Does it fit with #secretrecipe? If the answer is no, consider not using the document. Or, when selecting your witnesses, think about what “search term” they belong to. Will they testify about the #perfectrecord? Will they explain that employees become complacent and fail to follow the #lookbeforeyourreach rule? At trial, incorporate the hashtag into your examination to cue the jury as to its relevance. “So, Mr. Smith, I’d like to talk about your company’s perfect record. Can you tell the jury how many accidents you’ve had in the past 25 years?” In a sense, you create your own search terms that not only express the tone of your case, but also provide contextual cues to what point the various pieces of your case are trying to make.

Try it now. Think about a case on your desk at this very moment. If you were going to post it on Facebook or write a blog about it, what hashtags would you assign to it? You never know, you may just find your next trial theme. #tryityoumighlikeit #moderndaytrialconsulting.

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