Step 8.4 Write your theme

'Facts acquire muscle when they are structured around a theme.'248 The 'theme' of your argument closely relates to the plot.249 A 'theme' provides 'the unifying focus of your brief' that 'directs the court's attention … to where the heart of the matter lies' and answers the question 'What in the heck is the message?!"250 But a theme means more than a message that frames the legal issues. The theme uses a message that provokes 'a person to act; a cause of or for action or feeling'.251

Choose your message or theme by looking at your description of the character and the conflict. Your theme will come naturally from those descriptions252—for example, from the party's sense of justice or injustice. Some real-life themes include:

  • 'Let's put the honor back into the handshake' (in a case about a small ice-cream maker suing a larger company for allegedly breaching an oral contract)253
  • 'Human need or corporate greed?' (in a case about an insurance company allegedly defrauding a quadriplegic client)254
  • 'Let's not visit the sins of the father upon his sons' (in a death penalty case for a horrific murder committed by a father for which his sons were only tangentially involved)255

Choose your theme and express it; but then prove the theme by depicting events, rather than through explanation: 'A story's event structure is the means by which you first express, then prove your idea … without explanation'.256 And after you choose your theme, examine every part in your story for its possible implications for that theme:

'[A theme] names a story's root or central idea, but it also implies function: The Controlling Idea shapes the writer's strategic choices. It's yet another Creative Discipline to guide your aesthetic choices toward what is appropriate or inappropriate in your story, toward what is expressive of your Controlling Idea and may be kept versus what is irrelevant to it and must be cut.'257

248 Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 139.

249 Philip N Meyer, 'Vignettes from a Narrative Primer' (2006) 12 Journal of the Legal Writing Institute 229, 259.

250 Ruggero J Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2nd ed, 2003) 153 (quoting Chief Justice Walter Urbigkit) quoted also in Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 150–151. See also, for example, James W McElhaney, 'Legal Writing That Works' (2007) 93(7) ABA Journal 30.

251 Philip N Meyer, 'Vignettes from a Narrative Primer' (2006) 12 Journal of the Legal Writing Institute 229, 260 (quoting the Shorter Oxford English Dictionary, Vol 2, 5th ed, 2002).

252 Ruth Anne Robbins and BJ Foley, 'Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections' (2001) 32(2) Rutgers Law Journal 459, 469.

253 Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 139–140. For other examples, see Steven D Stark, Writing to Win: The Legal Writer (1999) 64–6, 69–70; Ruggero J Aldisert, Winning on Appeal: Better Briefs and Oral Argument(2nd ed, 2003) 153, 191, and especially 192–4.

254 Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 139–140.

255 Philip N Meyer, 'Vignettes from a Narrative Primer' (2006) 12 Journal of the Legal Writing Institute 229, 230.

256 Robert McKee, Story: Substance, Structure, Style, and the Principles of Screenwriting (1997) 114–5 quoted in Philip N Meyer, 'Vignettes from a Narrative Primer' (2006) 12 Journal of the Legal Writing Institute 229, 260.

257 Robert McKee, Story: Substance, Structure, Style, and the Principles of Screenwriting (1997) 114–5 quoted in Philip N Meyer, 'Vignettes from a Narrative Primer' (2006) 12 Journal of the Legal Writing Institute 229, 260.

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