Case Analysis #4
The Neutral Seven Elements step does not need a theme. It’s not trying to persuade anyone of anything. Just the facts, please.
When you spin for one side or the other, though, it’s a whole different story. Now you do want to persuade. Think of the stories that you like. One of their best features is how well they hang together. The protagonist is sympathetic from start to finish. The Bady Guy isn’t stupid in one chapter, sly in the second, and evil in the third.
So that is the fourth step of Case Analysis. Create the theme that forms the glue to hold your story and their story together. Note that the themes may not be inverse versions of each other. They can be totally different. This will be a longer episode, so bear with us, please.
Themes resemble advertising jingles. They can be cute, slang, or even vulgar. You won’t use the theme as a phrase in open court. The purpose is to guide your thinking as you create your spin.
Consider Goldilocks again. She may play up the theme of vulnerability. “This case is all about a huge power imbalance. Little girl vs. big, wild beasts.” That cries out as being unfair, right? Each element now plays up how small and helpless she is, how the Bears’ house was a beacon of safety, and how the Bears overreacted when they found her asleep in a bed. How could this cute little thing pose a threat to these giant animals?
But there is another story there, right? The Bears may claim Goldilocks was a menace turned loose by neglectful parents. Adults who should have considered the impact of their inaction. Or, they can play offence. Goldilocks wasn’t the victim. The Bears were. They leave their home intact and return to find it invaded by a person or persons unknown. A threat. They took reasonable action to protect their home. Imagine a Florida resident pleading the Stand Your Ground defence set out in their statutory Chapter 776. Goldilocks had no right to be in their home.
That leads us to another rule of themes. More of a guideline, really. If you can avoid it, don’t plead “in the alternative”. Try to make your reasons build on each other and see if they can lead you to a theme. As shown above, the Bears may blame Goldilocks’ parents or present her as an unknown threat. Building one on the other, they could say, “Not only did her parents unleash this menace on our home, but we also couldn’t be expected to know that this was a child. All human scent is the same to us.” The theme becomes one of homeowners defending their castle against the unknown, ominous threat.
Then the Bears revise their spin to accent the sanctity of their home and their actions as reasonable in the face of an unknown intrusion. What would you have done, Your Honour?
In Donoghue v. Stevenson, what should the respective themes be? Not much of a challenge for May Donoghue, creeped out by a decomposed snail oozing over her ice cream. But Mr. Stervenson has to choose which horse to ride. Sure, he can plead “in the alternative”. It wasn’t his ginger beer, OR he used best practices to produce safe products, OR May was already sick and overreacted here, OR the legal defence that there was no contractual privity.
Take a few stabs at Stevenson’s version to see how your choice of defence theme influences your spun Seven Elements.
Exercise: create themes for both parties in Donoghue v. Stevenson. Then revise the Seven Elements based on the themes you have chosen. Redo the defence version by adopting a different theme based on a different defence choice.
Identify and apply the theme(s) in any file in your own practice or, if in law school, to the both sides in a court case you are studying. This technique helps you to appreciate the nuances of your files or that of the litigators who presented the court case in the decision.
If you want more detail and exercises, consider Case Analysis - the Critical Path to Persuasion, available from Irwin Law here.