Case analysis and trial strategy - Trial advocacy skills
Introduction
Advocates must be story tellers. Because trials are contests where the best story teller wins1.
However, advocates do not tell their stories in vacuums. Unlike other story tellers, the context of an Advocate’s story is determined by the Theory of his/her case. The beginning point of an Advocate developing a Theory of the Case is what we shall refer to as Case Analysis. This can be defined as the detailed examination of the facts and evidence making up the case to categorise the strengths, weaknesses and develop a corresponding theory and them for the case.
The story is then designed or arranged to fulfil the elements of a particular case theory. And once the Theory is developed, it needs a theme/hook to sell it. First we shall define both Theory and Theme and then we shall discuss a trial strategies and how they aid in fulfilling the theory and theme of a case.
Theory
There are several ways to define a Theory;
1. Your theory is the adaptation of your story to the legal issues in the case. A theory of the case should be expressed in a single paragraph that combines an account of the facts and law in such a way as to lead the trier of fact to conclude that your client must win. Modern Trial Advocacy by Steven Lubert 4th Edition.
2. “That combination of facts (beyond dispute) and law which, in a common sense and emotional way, leads the jury /judge to conclude that a fellow person is wrongfully accused (or should not be severely punished).” - Tony Natale [Supervisory Asst. Federal Public Defender, Federal Public Defender Organization for the Southern District of Florida, Miami, FL].
3. “One central theory that organizes all facts, reasons, arguments and furnishes the basic position from which one determines every action in the trial.” Mario Conte
4. “A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused’s acquittal or conviction on a lesser charge while telling the defense’s story of innocence or reduced culpability.” Vince Aprile
Quote by Jeff Tilden, American Trial Lawyer at Kampala, August 2018
5. How the facts fit into the Law. Or why your client should win but explained by the facts.
For example, not “He was negligent” but instead “He didn’t look.” Steve Fury.
WHY HAVE A CASE THEORY?
“EVERYTHNG WE DO AT TRIAL WILL BE CONTROLED BY YOUR CASE THEORY”.
Your case theory controls;
• Your discovery & trial preparation
• Choice of Court / Forum to see remedy
• What’s said in your opening statement
• What is asked on examination in chief and cross examination
• What’s said in your submissions
To develop and express your theory, ask these three questions:
• What happened?
• Why did it happen?
• Why does that mean that my client should win?
If your answer is longer than one paragraph, your theory may be logical and true, but it is probably too complicated. A successful theory contains these elements:
• It is logical. It is based on a foundation of undisputed or otherwise provable facts, all of which lead in a single direction.
• It speaks to the legal elements of your case. All of your trial persuasion must aimed at a "legal" conclusion. Your theory therefore must be directed to prove every legal element that is necessary to both justify a verdict on your behalf and preserve it on appeal.
• It is simple. A good theory makes maximum use of undisputed facts. It relies as little as possible on evidence that may be hotly controverted, implausible, inadmissible, or otherwise difficult to prove.
• It is easy to believe. Even "true" theories may be difficult to believe because they contradict everyday experience or because they require harsh judgments. An airtight theory is able to encompass the entirety of the other side's case and still result in your victory by sheer logical force.
A theory of the case consists of the following parts:
1. The relevant law - The law that applies to the issues which arise in your case.
2. The facts of the crime that are beyond dispute - Those facts which (no matter what you do or say) will be believed by the fact finder as true. These include those facts which you will be able to present (through affidavit, direct examination or cross-examination) which the fact finder would likely accept as true.
3. Common sense - Ordinary people must believe based on their life experiences that the defense theory of the case is what happened.
4. A Theme - A word, phrase, or simple sentence that captures the controlling or dominant emotion and/or reality of the theory of the case. These often motivate more decisions by people than logic. Therefore, a theory of the case should generate feelings in the fact finder as to what, how, and why the case occurred.
A detailed look at Theme
Some definitions;
1. Best presented in a single sentence, a theme justifies the morality of your theory and appeals to the justice of the case. It has no independent legal weight, but rather it gives persuasive force to your legal arguments. Just as your theory must appeal to logic, your theme must appeal to moral force. Modern Trial Advocacy by Steven Lubert 4th Edition
2. Theme may also be defined as that part of the “story” presented in court which the lawyer selects and presents because of its particularly persuasive effect in relation to the ultimate conclusion which the lawyer wants the tribunal of fact to draw. Opinion Writing and Case Preparation Manual College of Law.
3. Theory consolidates why you should win. Theme is what sells it. Shawna Geiger
4. In 10 words or less conveying how and the moral basis why a Court should decide in your client’s favor. Or present it as a News Paper Headline.
5. A one sentence distillation of your case theory.
The most compelling themes appeal to shared values, civic virtues, or common motivations. And each of these have their opposites that can also be contrasted against them.
• Examples of shared values – Truth, Justice, Peace, Mercy, Public Good/Policy, Unity, Love, Fairness, Defending the Defenseless, Defense of Property etc
• Examples of common motivations – Family, Friendship, Patriotism, Success, Achievement, Loyalty, Faithfulness and fidelity, etc
• In a case for breach of contract, where the cause of action is specific performance, your theory will explain why a verdict is compelled by the law. Your theme can be "They honour money but not their promise." Or you might try, "You can’t sell some property, and keep it too."
• In a criminal case, where the accused is an unwilling participant, an example can be unwilling participant - forced to rob or where the accused is an unwilling accomplice - victim of fear.
• Once you have developed a theory and theme for your case, then you need a Trial Strategy. (Frame or Plan).
Trial Strategy
From developing the case theory, to making an opening statement, to the objections made, to the questions put to witnesses during the examination in chief, cross-examination and re-examination, to the impassioned final submissions attacking the credibility of an adverse witness, everything an advocate does and says in the courtroom should be planned in advance, hence the need for a trial strategy.
Once a theory and a theme been developed, then you must come up with a Trial Strategy or Plan for your case. Both in terms of the evidence you will lead and challenge and the type of legal process you will utilize to get the best or most favourable remedy quickly and affordably.
Below are the various parts of the case that make up your Trial Strategy which you must plan;
1. Planning Your Legal Argument / Submission
Ask yourself these two questions: 'What do I want to say at the end of the case? What evidence must I introduce or elicit in order to be able to say it? The answers will give you the broad outline of your entire case.
2. Planning the Presentation of Your Case.The major task of trial preparation is working with the facts; organising the evidence you have, identifying and locating additional evidence you need, and planning effective ways of presenting it. Developing the evidence is an integral part of refining your case theory.
a) Consider Your Potential Witnesses and Exhibits
* Evaluate Each Witness Individually
* Factual Weaknesses
* Evidentiary Problems
* Credibility Problems
* Evaluate Each Exhibit Individually
* Evidential Problems or Is it admissible.
* Which witness will tender it.
b) Decide Which Witness to Call and their order.
Irrespective of the number of witnesses available, one should make a positive choice of whether to call each individual, and not put every potential witness on the stand as a matter of course. Determination of the order of calling witnesses will be influenced by practical factors beyond one’s control, such as the times when particular witnesses are available or the rules of evidentiary foundations that require calling some witnesses before others. However, within these practical restrictions, the effective ordering of witnesses will help an advocate to present a logical, understandable case that highlights its strengths and hides its weaknesses as much as possible.
Consider the following suggestions;
* plan to start with a strong, important witness who can describe the event;
* start with witnesses who can set the scene, authenticate pictures of it, and describe the motives of the main actors;
* in general, call witnesses in chronological order, e.g., the plaintiff and eyewitnesses first to describe the accident, then witnesses to prove damages;
* call corroborating witnesses after a primary witness has testified; call weak or minor witnesses in the middle of your case;
* if several witnesses are needed to lay a foundation, such as a chain of custody, call them seriatim;
* call lay witnesses first and expert witnesses near the end, since they are generally drawing conclusions that will not make sense until the Court understands all the facts;
* finish with a strong witness. This takes advantage of the principle of recency.
3. Planning Your Cross-Examinations
Anticipate in advance evidence that should be objected to, and places where your opponent may object to your evidence. You need to decide whether the judge / magistrate will sustain any of these objections and exclude
Advocates must be story tellers. Because trials are contests where the best story teller wins1.
However, advocates do not tell their stories in vacuums. Unlike other story tellers, the context of an Advocate’s story is determined by the Theory of his/her case. The beginning point of an Advocate developing a Theory of the Case is what we shall refer to as Case Analysis. This can be defined as the detailed examination of the facts and evidence making up the case to categorise the strengths, weaknesses and develop a corresponding theory and them for the case.
The story is then designed or arranged to fulfil the elements of a particular case theory. And once the Theory is developed, it needs a theme/hook to sell it. First we shall define both Theory and Theme and then we shall discuss a trial strategies and how they aid in fulfilling the theory and theme of a case.
Theory
There are several ways to define a Theory;
1. Your theory is the adaptation of your story to the legal issues in the case. A theory of the case should be expressed in a single paragraph that combines an account of the facts and law in such a way as to lead the trier of fact to conclude that your client must win. Modern Trial Advocacy by Steven Lubert 4th Edition.
2. “That combination of facts (beyond dispute) and law which, in a common sense and emotional way, leads the jury /judge to conclude that a fellow person is wrongfully accused (or should not be severely punished).” - Tony Natale [Supervisory Asst. Federal Public Defender, Federal Public Defender Organization for the Southern District of Florida, Miami, FL].
3. “One central theory that organizes all facts, reasons, arguments and furnishes the basic position from which one determines every action in the trial.” Mario Conte
4. “A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused’s acquittal or conviction on a lesser charge while telling the defense’s story of innocence or reduced culpability.” Vince Aprile
Quote by Jeff Tilden, American Trial Lawyer at Kampala, August 2018
5. How the facts fit into the Law. Or why your client should win but explained by the facts.
For example, not “He was negligent” but instead “He didn’t look.” Steve Fury.
WHY HAVE A CASE THEORY?
“EVERYTHNG WE DO AT TRIAL WILL BE CONTROLED BY YOUR CASE THEORY”.
Your case theory controls;
• Your discovery & trial preparation
• Choice of Court / Forum to see remedy
• What’s said in your opening statement
• What is asked on examination in chief and cross examination
• What’s said in your submissions
To develop and express your theory, ask these three questions:
• What happened?
• Why did it happen?
• Why does that mean that my client should win?
If your answer is longer than one paragraph, your theory may be logical and true, but it is probably too complicated. A successful theory contains these elements:
• It is logical. It is based on a foundation of undisputed or otherwise provable facts, all of which lead in a single direction.
• It speaks to the legal elements of your case. All of your trial persuasion must aimed at a "legal" conclusion. Your theory therefore must be directed to prove every legal element that is necessary to both justify a verdict on your behalf and preserve it on appeal.
• It is simple. A good theory makes maximum use of undisputed facts. It relies as little as possible on evidence that may be hotly controverted, implausible, inadmissible, or otherwise difficult to prove.
• It is easy to believe. Even "true" theories may be difficult to believe because they contradict everyday experience or because they require harsh judgments. An airtight theory is able to encompass the entirety of the other side's case and still result in your victory by sheer logical force.
A theory of the case consists of the following parts:
1. The relevant law - The law that applies to the issues which arise in your case.
2. The facts of the crime that are beyond dispute - Those facts which (no matter what you do or say) will be believed by the fact finder as true. These include those facts which you will be able to present (through affidavit, direct examination or cross-examination) which the fact finder would likely accept as true.
3. Common sense - Ordinary people must believe based on their life experiences that the defense theory of the case is what happened.
4. A Theme - A word, phrase, or simple sentence that captures the controlling or dominant emotion and/or reality of the theory of the case. These often motivate more decisions by people than logic. Therefore, a theory of the case should generate feelings in the fact finder as to what, how, and why the case occurred.
A detailed look at Theme
Some definitions;
1. Best presented in a single sentence, a theme justifies the morality of your theory and appeals to the justice of the case. It has no independent legal weight, but rather it gives persuasive force to your legal arguments. Just as your theory must appeal to logic, your theme must appeal to moral force. Modern Trial Advocacy by Steven Lubert 4th Edition
2. Theme may also be defined as that part of the “story” presented in court which the lawyer selects and presents because of its particularly persuasive effect in relation to the ultimate conclusion which the lawyer wants the tribunal of fact to draw. Opinion Writing and Case Preparation Manual College of Law.
3. Theory consolidates why you should win. Theme is what sells it. Shawna Geiger
4. In 10 words or less conveying how and the moral basis why a Court should decide in your client’s favor. Or present it as a News Paper Headline.
5. A one sentence distillation of your case theory.
The most compelling themes appeal to shared values, civic virtues, or common motivations. And each of these have their opposites that can also be contrasted against them.
• Examples of shared values – Truth, Justice, Peace, Mercy, Public Good/Policy, Unity, Love, Fairness, Defending the Defenseless, Defense of Property etc
• Examples of common motivations – Family, Friendship, Patriotism, Success, Achievement, Loyalty, Faithfulness and fidelity, etc
• In a case for breach of contract, where the cause of action is specific performance, your theory will explain why a verdict is compelled by the law. Your theme can be "They honour money but not their promise." Or you might try, "You can’t sell some property, and keep it too."
• In a criminal case, where the accused is an unwilling participant, an example can be unwilling participant - forced to rob or where the accused is an unwilling accomplice - victim of fear.
• Once you have developed a theory and theme for your case, then you need a Trial Strategy. (Frame or Plan).
Trial Strategy
From developing the case theory, to making an opening statement, to the objections made, to the questions put to witnesses during the examination in chief, cross-examination and re-examination, to the impassioned final submissions attacking the credibility of an adverse witness, everything an advocate does and says in the courtroom should be planned in advance, hence the need for a trial strategy.
Once a theory and a theme been developed, then you must come up with a Trial Strategy or Plan for your case. Both in terms of the evidence you will lead and challenge and the type of legal process you will utilize to get the best or most favourable remedy quickly and affordably.
Below are the various parts of the case that make up your Trial Strategy which you must plan;
1. Planning Your Legal Argument / Submission
Ask yourself these two questions: 'What do I want to say at the end of the case? What evidence must I introduce or elicit in order to be able to say it? The answers will give you the broad outline of your entire case.
2. Planning the Presentation of Your Case.The major task of trial preparation is working with the facts; organising the evidence you have, identifying and locating additional evidence you need, and planning effective ways of presenting it. Developing the evidence is an integral part of refining your case theory.
a) Consider Your Potential Witnesses and Exhibits
* Evaluate Each Witness Individually
* Factual Weaknesses
* Evidentiary Problems
* Credibility Problems
* Evaluate Each Exhibit Individually
* Evidential Problems or Is it admissible.
* Which witness will tender it.
b) Decide Which Witness to Call and their order.
Irrespective of the number of witnesses available, one should make a positive choice of whether to call each individual, and not put every potential witness on the stand as a matter of course. Determination of the order of calling witnesses will be influenced by practical factors beyond one’s control, such as the times when particular witnesses are available or the rules of evidentiary foundations that require calling some witnesses before others. However, within these practical restrictions, the effective ordering of witnesses will help an advocate to present a logical, understandable case that highlights its strengths and hides its weaknesses as much as possible.
Consider the following suggestions;
* plan to start with a strong, important witness who can describe the event;
* start with witnesses who can set the scene, authenticate pictures of it, and describe the motives of the main actors;
* in general, call witnesses in chronological order, e.g., the plaintiff and eyewitnesses first to describe the accident, then witnesses to prove damages;
* call corroborating witnesses after a primary witness has testified; call weak or minor witnesses in the middle of your case;
* if several witnesses are needed to lay a foundation, such as a chain of custody, call them seriatim;
* call lay witnesses first and expert witnesses near the end, since they are generally drawing conclusions that will not make sense until the Court understands all the facts;
* finish with a strong witness. This takes advantage of the principle of recency.
3. Planning Your Cross-Examinations
Anticipate in advance evidence that should be objected to, and places where your opponent may object to your evidence. You need to decide whether the judge / magistrate will sustain any of these objections and exclude
Tags : Trial Advocacy