THEORY OF THE CASE AND THEME
Immediately after reading the problem, begin to form your theory of the case and your theme. The importance of the theory of the case and the theme cannot be overestimated. There are two sides to every case. For your side to win, you need a good theory of the case and a good theme.
THEORY OF THE CASE
What Is a Theory of the Case?
At the end of your trial, you will ask the jury to reach a verdict. In a criminal case, the verdict will be guilty or not guilty. In the verdiict in a civil case, the defendant will either be at fault or not. Think of the theory of the case as your plan for convincing the jury to reach the right verdict.
THEORY OF THE CASE
What Is a Theory of the Case?
At the end of your trial, you will ask the jury to reach a verdict. In a criminal case, the verdict will be guilty or not guilty. In the verdiict in a civil case, the defendant will either be at fault or not. Think of the theory of the case as your plan for convincing the jury to reach the right verdict.
A theory of the case is a central theory by which you organize the facts and reasons your client should win. It embodies facts, law, and common sense. It is your basic position on what the case is about. It needs to be comprehensive, yet easy enough for any juror to understand. Your theory of the case is your explanation of what happened and its legal significance.
You must commit your theory of the case to writing. Putting it down on paper will force you to evaluate it and revise it as necessary. Write your theory of the case in a short paragraph.
Benefits of Having a Theory of the Case
Having a theory of the case will help you organize each step odf the trial and present a coherent case. The theory of the case will allow you to better prepare for:
You must commit your theory of the case to writing. Putting it down on paper will force you to evaluate it and revise it as necessary. Write your theory of the case in a short paragraph.
Benefits of Having a Theory of the Case
Having a theory of the case will help you organize each step odf the trial and present a coherent case. The theory of the case will allow you to better prepare for:
- Pre-trial motion practice, because your theory will help you identify important evidentiary issues to be decideed up front.
- Opening statement, because your theory is itself a condensed opening statement.
- Organization of witness examination, because your theory helps you identify the key information to elicit from each witness
- Closing argument, because your theory is what you want the jurors to take with them to jury deliberation
Characteristics of a Good Theory of the Case
A good theory of the case contains several characteristics. It should be:
A good theory of the case contains several characteristics. It should be:
- Credible, which requires it to be consistent with common sense and human experience.
- An appeal to emotions, by including persuasive facts eliciting sympathy for your client
- Consistent with the law
- Consistent with the facts that are bad for your side
- Interesting and (if possible) entertaining
- Stated in concrete, ordinary language
- Not easily turned against you
Most, importantly, you must believe in your theory of the case.
How to Create Your Theory of the Case
With all these benefits and characteristics of the theory of the case, it is obviously important to come up with a good one! Do not just settle on the first description that comes to you. Spend time brainstorming a good theory of the case. To do so, consider the facts, the law, and common sense.
As to the facts, use ones that are either conclusively established or likely to be accepted by the jury, including the good facts for your side and the bad. do not include good facts that are seriously disputed. Your theme should not depend on a fact that the jury is unlikely to believe, because your theory will lose credibility. The jury will more likely adopt your opponent's theory of the case.
For the legal part of your theory, use the jury instructions. There may also be a statute or other legal authority, but in many Mock Trial competitions, the jury instructions alone provide the law.
Finally, be sure to consider common sense! Your theory has to be accepted by a diverse swath of humanity, jurors who will consider your statements and your evidence in light of their own everyday experiences. A theory that technically fits the law, but is otherwise nonsensical, will lose the jury.
. . .
THEME
What Is a Theme?
Your trial theme is a much shorter version of your theory of the case. Your theme is your theory boiled down to a sentence, a phrase, or even a word or two.
Benefits of Having a Theme
Your theme impresses your theory of the case upon the jury. Your theme gives the jurors an easy way to understand the case. With a clear, repeated theme that makes sense, you have a much better chance of convincing the jurors to view the case your way.
With a good theme, you can more easily re-orient the jurors to your side of the case when it comes time for cross-examination or closing argument. You may even throw your opponents off their game, forcing them to argue against your theme.
Mock Trial judges expect a theme and will reward you for having a clear one and using it repeatedly. In the real world, you will sometimes face opposing counsel with no theme, an incoherent theme, conflicting themes, or even a theme you can use. In the Mock Trial world, most atorneys develop a good theme.
Many Mock Trial attorneys mention their theme only in opening statement and closing argument. The best Mock Trial attorneys include their theme in every stage of the trial, including pre-trial motions and witness examinations. In examining witnesses, add a question or a line of questions that include your theme. You may even use your theme in making or responding to objections. If your opponent objects that a question does not ask for relevant evidence, for example, you mgiht repeat your theme and explain how the answer will fit it.
Characteristics of a Good Theme
A theme should be:
How to Create Your Theory of the Case
With all these benefits and characteristics of the theory of the case, it is obviously important to come up with a good one! Do not just settle on the first description that comes to you. Spend time brainstorming a good theory of the case. To do so, consider the facts, the law, and common sense.
As to the facts, use ones that are either conclusively established or likely to be accepted by the jury, including the good facts for your side and the bad. do not include good facts that are seriously disputed. Your theme should not depend on a fact that the jury is unlikely to believe, because your theory will lose credibility. The jury will more likely adopt your opponent's theory of the case.
For the legal part of your theory, use the jury instructions. There may also be a statute or other legal authority, but in many Mock Trial competitions, the jury instructions alone provide the law.
Finally, be sure to consider common sense! Your theory has to be accepted by a diverse swath of humanity, jurors who will consider your statements and your evidence in light of their own everyday experiences. A theory that technically fits the law, but is otherwise nonsensical, will lose the jury.
. . .
THEME
What Is a Theme?
Your trial theme is a much shorter version of your theory of the case. Your theme is your theory boiled down to a sentence, a phrase, or even a word or two.
Benefits of Having a Theme
Your theme impresses your theory of the case upon the jury. Your theme gives the jurors an easy way to understand the case. With a clear, repeated theme that makes sense, you have a much better chance of convincing the jurors to view the case your way.
With a good theme, you can more easily re-orient the jurors to your side of the case when it comes time for cross-examination or closing argument. You may even throw your opponents off their game, forcing them to argue against your theme.
Mock Trial judges expect a theme and will reward you for having a clear one and using it repeatedly. In the real world, you will sometimes face opposing counsel with no theme, an incoherent theme, conflicting themes, or even a theme you can use. In the Mock Trial world, most atorneys develop a good theme.
Many Mock Trial attorneys mention their theme only in opening statement and closing argument. The best Mock Trial attorneys include their theme in every stage of the trial, including pre-trial motions and witness examinations. In examining witnesses, add a question or a line of questions that include your theme. You may even use your theme in making or responding to objections. If your opponent objects that a question does not ask for relevant evidence, for example, you mgiht repeat your theme and explain how the answer will fit it.
Characteristics of a Good Theme
A theme should be:
- Short -- a sentence, phrase, or just a word
- Simple -- use basic, clear words
- Sensible -- appeal to the jurors' common sense
- Memorable
- Not easily turned against you
How to Create Your Theme
You should create your theme as soon as you have created your theory of the case. Do not put off creating your theme. The sooner you have it, the sooner you can come up with ways to include it in your opening statement, witness examination, and closing argument. Condense your theory of the case to its very essence, down to a sentence or phrase. Work with your wording until it is as short as possible and memorable. Brainstorm whether the other side could use it against you, and revise it if necessary.
You should create your theme as soon as you have created your theory of the case. Do not put off creating your theme. The sooner you have it, the sooner you can come up with ways to include it in your opening statement, witness examination, and closing argument. Condense your theory of the case to its very essence, down to a sentence or phrase. Work with your wording until it is as short as possible and memorable. Brainstorm whether the other side could use it against you, and revise it if necessary.