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Theory and Theme in Divorce


Be advised that I, Eric Roy, write these articles primarily for my own benefit as I find the subject matter interesting. Theory and theme concepts are not novel to trial advocacy. There are numerous publications written on the subject and virtually any trial advocacy expert will be familiar with these concepts. Below find a brief description of the importance of theory and theme in both divorce and/or custody matters.

A concept which seems relatively easy to comprehend but sometimes difficult to employ is that of the theory and theme of your case. This is one of the most undervalued tools by trial attorneys. For whatever reason trial attorneys either don't understand the importance of the theory and theme or just don't take the time to craft a theory or theme for their respective cases. Theories and themes are great tools for all types of cases whether it be for personal injury, criminal defense, or divorce or custody cases. Don't assume that because your case isn't a murder defense case that a theory and theme are not important. They are always important.

You first need to understand what a theory of the case is and how your theory differs from your theme. Your theory of the case is the reason that your client should win. If you could succinctly state why your client should prevail in a sentence or two this is your theory of the case. You need to be thinking of you theory of the case as your client retains and begins the fact development process. Once you develop your theory of the case you need to begin organizing all of your evidence in a way that supports your theory. This goes for both documentary evidence as well as witness testimony. All evidence should in some way support this theory.

After you have developed your theory of the case and produced all the supporting evidence to support that theory you can then move on to theme development. The theme of your case is the story of your case. The theme thus should be summed up in one succinct sentence. Your theme should be interesting and memorable. You want the judge or jury to remember your case by the theme. They should go home and tell their husband or wife "that was the case about……." If the finder of fact remembers your theme then you have done your job well. A good example of a theme of a case can be found in the O.J. Simpson murder trial. There, the prosecution made the mistake of having O.J. Simpson try on the murder glove found at the crime scene. Unfortunately for the prosecution the glove did not fit onto O.J.'s hand. The defense coined the phrase "if it does not fit, you must acquit". Johnnie Cochran then repeated this same theme over and over throughout the remainder of the trial. It was likely this evidence and theme that provided O.J. Simpson with a win.

Once you develop your theme you need to begin using it beginning with your very first motion. From there on out you should be repeating your theme in all substantive written pleadings. Every time you are in court, whether it be at motion hearing or trial you need to be repeating this theme. In trial you should begin your opening statement with this theme. Then on direct and cross examination you need to be eliciting testimony that supports your theory and theme. Then, in closing you will once again weave your theme into your closing specifying how all the elicited testimony supports your theme. When the trial concludes your theme should resonate with the finder of fact.

Although it takes time to develop a theory and theme do not blow off this task. Take the time to develop your theory and theme. It may take a day or two to develop these tools but the time spent will pay off. As you become accustomed to developing theories and themes it will become easier. After some time you will create a repertoire of theories and themes that you can consistently go back to and use over and over again.

Categories: Family Law