Cross-Exam: Chapter 2

The theory of a case is a statement of position that justifies the verdict sought.  The theory should have factual support and provide a factual attack.  The theory must be adopted before trial and link all aspects of the case.

Refresh the memories and emotions of the jurors during voir dire.  The best theory is one that will make jurors reflect on common life experiences.

Use closing argument as a method to find your case theory.  You must know applicable law because the facts and law should come together to justify the outcome being sought,

“Them” theory reminds jurors that the burden of proof is on the prosecution.  The “us” theory has a tendency to shift the burden to the defendant.

The case theory must incorporate or neutralize facts and inferences that are “beyond change” because these are facts that will be believed by the jury as accurate no matter what.  Be sure that facts are actually “beyond change” before conceding to them because conceding to any facts limits the theory of your case.  Use motions in limine to try to keep negative “beyond change” facts out or to make sure positive ones stay in.  Also use motions in limine to keep things out that will instill emotions in jurors that will have a negative impact on your case.

Re-examine facts from many angles and make a negative “beyond change” fact into a positive.  This will take the sting out of opponent’s argument.  Facts “beyond change” are best proven in cross-exam.

Identify the dominant emotion of the case and transform it into a fact of the case.  This way the jurors will feel as the client felt and better understand why the client did what they did.

Convert the theme theory into a theme phrase that the jury can understand.  Theme phrases should be integrated into the whole trial through repeating in the opening, direct, cross and closing.  Be careful not to use a mocking or sarcastic tone when summarizing opponents theme.  This could make attorney lose credibility.  Let the facts speak for themselves.  Use irony or underplayed sarcasm when developing a theme line that symbolizes the theory of the case while pointing out the weakness of the opponent’s theory.


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