Domestic Diversions

Theme & Theory

A simple overall theory is our guiding light throughout the entire trial.

Steven Lubet, Modern Trial Advocacy 8 (1993), describes how to examine your case. Ask yourself: What’s so compelling about my client’s position? Write down in one paragraph the story of what happened, why it happened, and how that entitles your client to the relief requested. Have I convinced myself that my client is right? If so, I have my theory.
Now ask yourself: What is the single sentence that justifies the morality of my theory? What headline to my theory best summarizes the right thing to do in this case? See Lubet, supra, at 8-9.

McElhaney, supra, at 46, suggests:
[F]ocus your side of the trial–and all of its individual parts–on the moral imperative, the wrong that needs to be set right. This is another way of describing what you do when you plan your theory of the case, how you pick the themes that support that theory, and how you decide which facts and witnesses are really important to proving your case and which ones you are better off without.

And Mauet, supra, at 63, helps you find the theme:
Good themes are based on the universal truths about people and events we learn during our lives. Good sources of themes are the great works of literature, religious classics such as the Bible, and popular sayings that are part of everyday speech.

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