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Continued... Page 8 > Developing a Theme that Sells

There is no difference between the love of a black man for his offspring and the love of a white. He and his wife have the same feeling of fatherly and motherly affection for their child as you gentlemen have for yours and that your father and mother had for you. They brought that home for that purpose; not to kill somebody. . . . They took guns there that in case of need they might fight, fight even to the death for their home, and for each other, for their people, for their race, for their rights under the Constitution and the laws under which all of us live. Weinberg, ìAttorney For The Damnedî (1957) pp. 247: 48.

STRUCTURE OF A THEME -- STERN'S PRINCIPLE OF THE WHOLE

Herbert J. Stern is a nationally known trial lawyer and teacher of trial techniques and strategy. His book, Trying Cases To Win , focuses on the importance of developing one central theme. In support of this point, he cites Abraham Lincoln as a master trial lawyer whose success was due to his genius of seeing the central theme in a case and aiming steadily at it from beginning to end. On this point, he quotes Mr. Lincoln's partner, William Herndon, as follows:

Mr. Lincoln saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play.

In advocating that the lawyer come up with one central theme, Mr. Stern correctly observes that human memory is set up to remember a central theme rather than individual details . The theme serves a vital role in meeting the jurors' need to resolve conflict in the evidence, a need which increases as the trial goes on. Jurors are uncomfortable with the ìbuffetî approach where counsel offers various alternative theories, without really narrowing it down. Rather, jurors are looking for the one explanation that best reconciles the greatest number of discrepancies. A theme must meet this need.

In most cases, it is impossible to find a ìstraight bright lineî that will incorporate all the apparent contradictions in the case. Stern advises the lawyer to ask the question, ìWhat will the jurors believe after hearing all of the evidence?î and then come up with a theme or theory that will take all the evidence into account that the jurors are likely to believe.

In this process, there are four possible approaches a lawyer can take to the discrepancies in the evidence: Ignore, Acknowledge, Explain, Use.

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