Domestic Diversions

Checklists
THEME AND THEORY OF CASE:
1. What it is:
a. Perspective you want the trier-of-fact to view case from.
b. Your position and approach to the evidence to be presented.
c. Persuasive theme integrating case.
2. What it does:
a. Reminds you what is important, what is not, and why.
b. Persuades the trier-of-fact to accept one of several disputed versions of case.
c. Unifies trial.
3. Benchmarks of a good theory:
a. Be grounded in strong facts and fair inferences based, as much as possible, on uncontested facts.
b. Be consistent with all uncontested facts.
c. Provide a basis to explain away in a plausible manner as many unfavorable facts as possible.
d. Have common-sense appeal which is readily acceptable by a trier-of-fact.
e. Not be based on wishful thinking about any phase of the case.
4. Construction:
Identify the legal and factual issues in the case.
Analyze evidence supporting your position.
Analyze evidence supporting your opponent’s position.
Compare the evidence and pinpoint the critical areas.
Think how to exploit your strong points and your opponent’s weak points.
Think how to “shore up” your weak points and your opponent’s strong points.
Come up with tentative theory.
Check theory against benchmarks.
Revise theory if necessary.
Consider your opponent’s probable theory.
Revise theory if necessary.
Discuss theory with others.
Revise theory if necessary.
5. Theme:
Summarize your theory in one sentence.
Weave into each phase of the trial.