Winning at Sentencing With Theories, Themes, and the Creative Demonstration of Truth

Before moving ahead with any contested sentencing, lawyers must first articulate the theory of their sentencing argument. Only then will their sentencing stories and the tools they need to tell them begin to take shape. After laying this solid story foundation, lawyers must then do the creative work of fleshing out the dominant themes that serve to illuminate the emotional heart of the theory, or what attorney Doug Passon refers to as the truth of a case. Simply saying the case is about “abuse” or “mental illness” or “addiction” does not mean the defense has come up with a theme. Those are not themes. Those are ideas. The theme is what the defense lawyer says about those ideas. For example, “love” is not a theme. Instead, “money cannot buy love” and “she would have done anything for love” are themes.