Winning Through Language: A Guide to Effective Themes for Your Case
Gerry Spence advises advocates to review their briefs several times. Then, says Spence, “write a descriptive phrase or metaphor that symbolizes the soul of the case—a refrain, perhaps—and … call it the theme.” Gerry Spence, How to Argue and Win Every Time: At Home, At Work, In Court, Everywhere, Everyday (St Martin’s Griffin, 1995), 125.
You should “select a phrase, a theme, a slogan that represents the principal point of [your] argument. The theme can summarize a story that stands for the ultimate point we want to make: a saying, as it were, that symbolizes the heart of the issue.” (Spence, 127).
Remember Johnny Cochran’s brilliant defense in People v Simpson? Cochran’s soundbite was, “If the glove doesn’t fit, you must acquit!”
The prosecution had presented the glove in evidence as having been worn by the defendant O. J. Simpson when he allegedly murdered his wife, Nicole Brown-Simpson. Defense counsel Johnny Cochran asked Simpson to try the glove on for size in open court. Well, the glove didn’t fit, and Simpson was acquitted.
In Simpson, a criminal case, all that the defense needed to do to earn an acquittal was to cast reasonable doubt on the prosecution’s case. This they did by showing that the glove was the wrong size for their client, whereupon they kept repeating that theme as a slogan throughout the case. It proved an apt, effective, and ultimately successful theme for the defense.
Chinua Asuzu, Brief-Writing Masterclass (Partridge, 2017), 426–427.