12.2.2 Developing a Case Theme

There is so much work to prepare for court that lawyers sometimes forget the basics. But taking the time to be thoughtful about a case theme that is specific to your client and her case can go a long way toward helping the judge see your client as a person instead of just another petitioner. A case theme does not need to be complicated. Think of it as an idea that creates a lens through which the judge will hear the evidence. It must be threaded throughout the case. For example, a case theme can be something as simple as “Ms. Smith and her children deserve peace in their home.” Or “No one should have to live like this. Ms. Smith should not have to spend one more day looking over her shoulder, wondering if today is the day he will make good on his promise.” By contrast, a case theme can also be about the abusive party, which can sometimes be helpful if you want to forecast to the court that the defendant will be accusing your client of misconduct: “Mr. Smith will never take responsibility for his conduct and will always find a way to blame Ms. Smith for his problems.”

Some general rules: (1) a case theme should be simple and have logical appeal; (2) it must always be provable and not overstate your case; (3) it should give the judge a reason to care; (4) it should anticipate issues or unfavorable facts the other side might raise; (5) it should be broad enough that it can play a role in each part of your case. The case theme should always be shared with your client in advance of court. If you got it right, your client will feel heard and validated because it speaks to her experience. Sharing your case theme with your client helps confirm that you “got it right” and will help your client stay focused on the issues that matter most when testifying.

An effective case theme can also present the opportunity to respond to the other side in the earliest stages of litigation. Your client almost always knows what her abusive former partner will say about her. Ask your client directly “what is he going to say about you” or “what is the worst thing he will try to say about you, true or not.” When it makes sense, work those issues into your case theme. For example, if financial, housing, and employment instability are issues the abusive party may try to use to his advantage for custody, connect those problems to his own bad acts (e.g., harassment on the job, fleeing to shelter because of abuse), and incorporate that into your case theme (i.e., “Mr. Smith hopes the court will reward him for his own bad acts and the harm they have caused to his family.”). The same argument could apply to mental health issues attributable to the abuse, such as depression and anxiety. Be careful, however, not to feature or highlight unfavorable facts that will play only a peripheral role in the case.