The Development of Professional Judgment in Law School Litigation Courses: The Concepts of Trial Theory and Theme

I was delighted when the Vanderbilt Law Review asked me to submit a short essay on trial advocacy. This Essay allows me to discuss two concepts, the trial theory and theme, that should be highlighted in every law school litigation course. Several years ago I wrote a text on commercial litigation for practitioners. That text proposed definitions for the concepts of "theory" and "theme"and suggested that trial attorneys organize their pretrial preparation and trial presentation in terms of those concepts.

Since the publication of the text, I have attempted to refine the concepts and to use the concepts to restructure my trial practice course. I am now convinced both of the soundness of the concepts and of their utility as a conceptual framework for teaching trial advocacy. Section I of this Essay sets out the definitions of trial theory and theme. Section II argues that the very purpose of the pretrial stages of litigation is to enable the trial attorney to select a theory and theme for trial.

Section III explains how the choice of theory and theme dictates virtually everything that the attorney does at trial. The conclusion urges that law professors structure litigation courses to teach the concepts of theory and theme in addition to mechanics and tactics. So structured, a litigation course can help the student develop the sense of prudential judgment that is valued in a legal counselor.