The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators. But the way that we come up with a theme is a little more mysterious. Some see theme creation as an act of laborious analysis, developed out of a painstaking accounting of all case issues, good and bad. Others see it as an act of divine inspiration, a ‘bolt from the blue’ that arrives unexplained from some part of our mind. Someplace in between these two perspectives, I’d like to suggest one handy tool that will not only help you develop a theme, but will also provide you with a broad working vocabulary to use when talking about your case.
The advice is to draw from the work of the rhetorician Richard Weaver, and identify the ‘god terms’ and ‘devil terms’ of your case. God terms represent all of the words and phrases that you embrace, words that have an "inherent potency" in identifying what you support. Writing in the fifties, Weaver used the examples of "progress" and "freedom" as words that we took as unquestionably good. As you might expect, 'devil terms' represent their mirror image, and Weaver's prime example of "communist," has been replaced in our time by "terrorist" as the ultimate devil term. Devil terms are not terms you avoid, but are rather terms that you embrace in describing the other side, and in helping to frame what your audience should be against. The celestial imagery behind the words is more than just a great way for you to remember the concept, but is instead an important part of its meaning. A god term means more than just a 'good term' but is instead a "rhetorical absolute," something that carries a strong automatic meaning. That is, it isn't good because we can think of an argument why it is good. Instead, it is good because it fits with at least one common worldview that our audience holds about what is good. Same for devil terms - they carry a natural unfavorable connotation.