3.2.5 IDENTIFYING ATHEME FORYOURARGUMENT

As you think broadly about the issues that your case presents, it is a good idea to identify a potential theme or themes for your argument. The theme may develop or change as you continue the research and writing process, but identifying at least a tentative theme early in your research can help to direct your research as well.

A good theme is a statement about the law, about the facts, or about how the law and facts intersect, and it is a statement that is true even in the face of your opponent’s best argument. Good themes are often policy-based for this reason; although two interpretations of a statute may not be able to coexist, two competing policies often can. When courts must choose between two competing interpretations of the law, they often do so by identifying (explicitly or implicitly) which of two competing policy arguments is more important in this situation. The court’s decision does not negate the validity of the “losing” theme or policy argument; it merely decides that in this particular circumstance, another policy is more important.

To identify a theme, try to think both broadly and specifically about what your case is about, and try to identify a policy that supports the result you seek. For example, if your client is arguing that a state statute that promises a “safe” workplace entitles him to an injunction banning smoking in and around his office building, possible themes include the importance of protecting nonsmokers from secondhand smoke, of protecting the health of workers, or of protecting and promoting public health. In contrast, your opponent might choose as a theme the importance of respecting the autonomy of private employers to make decisions regarding legal activities within the workplace.

A theme can affect how you write your brief, but it can also help to make your legal research more effective. In the injunction case noted previously, both sides would research the safe workplace statute and its interpreting decisions, as well as authorities relevant to injunctive relief. Going up the abstraction ladder, both sides could research workplace issues in general, and workplace safety issues in particular. Counsel for the employee, however, might spend some time identifying authorities that show the importance of protecting worker health or public health, or the laws and regulations that govern secondhand smoke. Counsel for the employer would try to identify other situations in which legislatures or courts have given employers the autonomy to make workplace decisions that were unpopular with some employees.

Do not close yourself off to other ideas when trying to choose a theme; you may well change your mind as your research and writing progress. By starting to think about possible themes now, however, you make it more likely that you will find authorities that help you to build arguments around your theme.