In this episode I help the mock trial participant understand the basic building blocks of case theory and theme. Most of the discussion concerns development of the fact, legal, and persuasive parts of the case to form the succinct statement of the whole pitch.
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A theory of the case comprises three interrelated parts:
On the other hand, the case THEME comprises a one sentence distillation of your case theory that appeals to the jurors’ moral values. The theme might use words to paint a metaphorical picture of the case or may directly appeal to a commonly held belief system. The theme of the O.J. Simpson criminal defense provides a famous example: “If the glove does not fit, you must acquit.” This simple theme summarized the defense case theory that the facts did not add up to prove Simpson’s guilty beyond a reasonable doubt.
Make sure the theme cannot be flipped by the opposing side. For example, a justice theme might appeal to both the prosecution and the defense in a criminal case.
Each side of a case for trial develops a LEGAL theory by doing the necessary legal research to determine all possible law governing your case. The attorneys pull out the most important legal issues, usually the controverted elements, and incorporates those into the overall case theory. The fact theory should support the legal theory.
The attorney, working with witnesses, develops a FACTUAL theory by determining what happened. The following tools and strategies help with development of the fact theory:
Attorneys developing a PERSUASIVE theory by thinking about what spin can be put on the facts, within the context of the law, that will appeal to our sense of fairness and justice. The persuasive theory should consider the audience (i.e., the Judge or Jury)
The persuasive theory should correlate with the theme. The attorney may discovery a persuasive theory by brainstorming. I like to use a mind map. For example, put a keyword from the persuasive theory or a key fact in the center circle. Then, link additional circles to one another extending out from the center using free word and concept association. Often this exercise leads to creative and compelling ideas.
To ensure a case theory works successfully, evaluation it using the grandmother test. Ask these questions:
If the written case theory passes the analysis, then the attorney is ready to prepare the case and chief. The case theory will drive what testimony is solicited during the trial and what evidence is used as exhibits. The attorney will use the principles of recency and primacy to organize the opening statement and closing argument. The combination of a great case theory, organization, and them will provide the best chance for persuading the jury to delivery the desired verdict.