Theory and themes key to trying a case.

Byline: Daniel I. Small

To try a case effectively, you need to have a theory of the case, and you need to develop themes to help persuade the jury. Although they are both important, they are not the same thing, and both need to be considered carefully.

Theory of the case

It's not enough just to tell a story to the jury. The story has to mean something; it has to persuade. A trial presentation needs to be organized around a basic theory that fits the facts and (if believed) will win the case.

A theory might look like this:

"The defendant does not dispute that Mrs. Jones was attacked and robbed and that she is an innocent victim. However, he was not the one who did it. He was not there; he was at work, eight miles away, at the time of the attack. Mrs. Jones' identification of him is simply mistaken."

Among other things, this will help focus your presentation on things that matter (for example, whether the victim's vision was impaired) and help avoid wasting time on things that don't (for example, whether the victim should have taken more precautions). The facts that you develop should help prove the theory. Don't elicit facts without a clear purpose.

The word "theory" is perhaps misleading; it's not conjecture or hypothesis. It's just a shorthand way of describing what you believe (and will prove) actually happened.

A successful theory needs to be reasonable, or at least plausible. That does not necessarily mean a simple theory, or even a single one. Even a complex theory is far preferable to no theory at all. If you can't come up with a reasonable theory, maybe you need to settle the case (or plead it out) and move on.

Remember that your opponent will have his or her own theory of the case. Don't simply ignore harmful facts. Your theory needs to take those facts, and your opponent's likely theory, into account.

These principles also apply in the defense of criminal cases, and even cases in which no alternative narrative is feasible and the only goal is to establish reasonable doubt. A maxim attributed to Frederick the Great is that a man who tries to defend everything defends nothing.

Themes

A theme is a core fact, or core conclusion, that you want the jury to focus on over the course of the trial. Even a simple trial may have dozens of stray facts and arguments, and you want to make sure the jury understands and remembers your key points.

Usually a theme is grounded in the facts: "The plaintiff was not adequately trained to operate the...