Mock Trial Flight School

Episode 3 Case Theory and Theme

Show Notes

In this episode, I help the mock trial participant understand the basic building blocks of case theory and theme. A sound case theory forms the foundation for everything else in a trial, particularly the opening statement and closing argument.

Most of the discussion in this episode concerns case theory.

A case theory comprises three interrelated parts:

· the LEGAL theory, that is the law that entitles you to the relief you are seeking

· the FACTUAL theory, that is the story or facts that satisfy your legal theory, and

· the PERSUASIVE theory, that is why you should win as a matter of fairness and justice.

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.

Note: 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.

Part 1: LEGAL THEORY

Each side of a case for trial develops a LEGAL theory by doing the necessary legal research to determine all possible laws 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 legal theory.

Part 2: FACTUAL THEORY

The attorney, working with witnesses, develops a FACTUAL theory by determining what happened.

· The following tools help:

· Chronologies

· Proof Charts

· Identifying facts as opposed to conclusions

· Thinking about what inferences can be drawn from those facts–both pro and con

· Identifying hard facts versus soft facts

· Identifying those factual questions that are in dispute and determining how to develop further information about the disputed facts

· Thinking about the facts as a story or movie script–what should/would happen in this situation

· Thinking about why a jury should believe your story and not the other side’s story

Part 3: PERSUASIVE 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.

Part 4: A CHECKLIST for developing a CASE THEORY

Part 5: Passing the GRANDMOTHER TEST

Can a grandmother understand the one-sentence theme?

Does the 15-second version of the case theory use simple and powerful language?

Are the inferences reasonable?

Is the case theory consistent with common sense?

Does the case theory square with motives the jury would expect?

Can a well-organized and persuasive case mitigate the worst facts against the case theory?

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