Overview

Reading:

INTRODUCTION

This paper deals with 3 things:

(1) why one needs to have Preparation and Case Analysis as a separate topic in pupil workshop

(2) how one can explain these concepts to pupils or young practitioners

(3) how one can best conduct a Case Analysis

THE NEED FOR PREPARATION AND CASE ANALYSIS

- as experienced advocates we know that all advocacy starts with and is predicated on proper preparation.

- when I first had occasion to try to rationalize process of preparation which you and I now perform on autopilot having done it for.so many years, seemed to me that were 2 stages to exercise (although not suggesting that we necessarily keep in watertight compartments)

unfocused

focused

- unfocused stage consists of what we first do when we get a set of instructions; read papers, master facts, research law, prepare chronology of events etc. As one might expect, on the whole our pupils are reasonably competent at these tasks.

The difficulty arises at the second, focused stage, at which we decide on what our ultimate objective is and how propose to get there. That combination of objective and route to that objective is what is called the CASE CONCEPT, although I prefer to use term BATTLE PLAN, since that is what it really is and means more to students.

It is only when we have settled on Case Concept that we can make sensible decisions about what evidence to adduce in chief, what line to adopt in cross-examination of other side’s witnesses, how to structure your submissions etc.; We can then plan and even write our closing speech.

This process of CASE ANALYSIS of identifying your BATTLE PLAN, is where weaknesses can reveal itself in a number of guises. If this is not done that you have no sense of direction in your questions, you may run inconsistent cases at the same time or use a scatter gun approach in cross-examination.

The Fundamental purpose/ ultimate aim of any form of advocacy?

PERSUASION

persuade of what?

that the deft is G/NG

that the claimant is entitled to damages judgment for the deft

i.e. that client's case is correct, or at least better than opponent's case.

Now go one stage back; you are sitting in court, you rise to your feet if you are going to persuade your tribunal that your case is correct, what is the essential steppingstone towards that objective? i.e. what must you do in court?

COMMUNICATE

You have got to communicate what your case is.
Go on one stage further back, now ask yourselves hat is this case you are seeking to communicate?
How do you decide what it is?

PREPARATION IS YOUR KEY

There is no short cut to proper preparation. Time and time again one sees cases go wrong in court or go less well than should because the advocate is not properly prepared.

So, you want to concentrate on for the moment on PROPER PRE-TRIAL PREPARATION

WORK BACKWARD...USE THE GOAL ORIENTED APROACH...THINK OF WHAT YOU WANT TO SAY IN YOUR CLOSING ADDRESS OR CLOSING SUBMISSIONS TO THE COURT AND STRUCTURE YOUR TRIAL PREPARATION TO GIVE YOU THE END RESULT THAT YOU DESIRE.

STAGES OF PREPARATION

investigative/unfocused

understanding what case is all about in all its aspects; will involve

READING

NOTING

CHRONOLOGY

LEGAL RESEARCH ANALYSIS

The 3 stages are: master the facts; master the law; analyze the facts/law and apply the law to the facts.

Is that enough?

NO!

you must have overall objective strategy tactics.

What is your case, Strengths and Weaknesses?

What is the case for the other side, Strengths and Weaknesses?

Now ask yourself the following

what is the Evidence that you must produce to make out your case?
From whom do you intend to adduce this evidence?
What are the pitfalls with regard to admissibility of this evidence?
What are the possible objections that may arise with regard to this evidence and how do you plan to overcome or respond to those objections?
What evidence are you going to challenge or turn and who from?
How will you structure your closing address or submissions?

Before you prepare your Examination-in-Chief prepare your closing submissions

Having done your analysis and come up with your battle plan/strategy to achieve your aim/objective you must now examine several issues from an advocacy viewpoint

You must determine which submissions are the appropriate submissions to be made to the Court. One should bear in mind any preliminary points, for example, portions of an affidavit in civil matters that contain hearsay evidence. You indicate to the Court your submission, why you are making it, what is the law on the subject, apply the law to your fact scenario, come to YOUR conclusion.
Where you start and where you end will mirror each other so that your submission and conclusion must reflect each other.

3. Be aware of any particular points in limine as they will dispense with the matter e.g. Duplicity in a criminal matter.

4. When replying to submissions by your opponent respond appropriately to points made by him. Good preparation makes you ready for this, by good case analysis. Anticipate some of his points and deal with them, (dismissively?) Maybe so.

5. Observe the rules of professional conduct. Ethics is central to good advocacy; never ‘knowingly' mislead the Court, never say anything your client has not instructed you to say or present.

If your client seeks to have you invent facts to assist his case, please decline to do so.

Note, if the Court asks you a question deal with it immediately. Do not tell the Court you will get back to them on that. If you do not know and need an adjournment to research the point, indicate your need.

NOTE: -Non-professional witnesses

– you need to exercise great care and caution.

-Simple language

-Short questions

-Speak slowly (tell diem to speak slowly)

-Ask demonstrations if needed

-Ask for them to refresh memory if needed.

MODULE 1

UNIT 2

Case Theory MUST agree with Case Theme.

YOUR CASE THEORY CONTROLS:

– Your discovery & trial preparation

– Jury selection

– What is said in your opening statement

– What is asked on examination-in-chief and cross examination

– What is said in your closing argument

– What will be in your proposed charge to the jury

WHY HAVE A CASE THEORY?

Everything we do at trial will be controlled by your case theory.

WHAT IS A CASE THEORY?

A case theory consists of:

LEGAL THEORY
FACTUAL THEORY

– PERSUASIVE THEORY

EQUALS CASE THEORY LEGAL THEORY
THE LAW THAT ENTITLES YOU TO WIN

– JURY INSTRUCTIONS

– STATUTUES

– CASE LAW FACTUAL THEORY

WHAT HAPPENED IN THE CASE
WAYS OF GETTING A HANDLE ON THE FACTS

– CHRONOLOGY

– PROOF CHART

– FACTS NOT CONCLUSIONS

– INFERENCES THAT CAN BE DRAWN FROM THE FACTS FACTUAL THEORY

– IF TRUE, WHAT ELSE MUST BE TRUE

– HARD FACTS VERSUS SOFT FACTS

– THE MOVIE SCRIPT—WHAT WOULD/SHOULD HAPPEN IN THIS SITUATION

MOTIVES—WHY DID A PERSON ACT IN THE WAY CLAIMED
COMMON SENSE—DOES THE STORY COMPORT WITH COMMON SENSE PERSUASIVE THEORY
WHY SHOULD YOU WIN AS A MATTER OF FAIRNESS AND JUSTICE
WANT TO IDENTIFY THE HERO AND VILLIAN IN THE CASE

SUMMARIZE YOUR CASE IN ONE PARAGRAPH

– Using simple, powerful language
– Incorporating your best facts
– Explicitly or implicitly refuting your worst facts

CASE THEORY

TEN COMMANDMENTS OF A GOOD CASE THEORY

SHORT
SIMPLE
SATISFIES LEGAL REQUIREMENTS
CONSISTENT WITH FACTS
EMOTIONALLY APPEALING— PLACES MORAL BLAME AND APPEALS TO COMMON VALUES
EXPLAIN MOTIVES
TELLS A STORY
USE IMPACT WORDS AND PHRASES
LIMITED TO ONE THEORY
YOU MUST BELIEVE THE THEME

IT IS A ONE SENTENCE DISTILLATION

GOOD FACTS/BAD FACTS

SELECT YOUR BEST __ GOOD FACTS AND YOUR WORST __ BAD FACTS

– BRAINSTORM ABOUT GOOD FACTS AND BAD FACTS

FACTS--NOT CONCLUSIONS
DON’T ARGUE AT THIS POINT—CUTS OFF CREATIVITY

– Is it admissible

– Is it understandable

– Is it believable

– Is it a hard or soft fact

– Do we need to draw any inferences

– Are the inferences reasonable

– If this fact is true what other facts must be true (are they?)

– Is it consistent with common sense

– Does it square with the motives we would expect

– Will it be countered by other evidence

– In short, why should the judge or jury believe the best facts & disbelieve the worst facts.

The case theme is based on a short “bumper sticker” phrase that will resonate with your tribunal of fact howsoever constituted.

What is your message? Developing a case theory and theme

How do you prepare a case for a hearing in court? First, you sit down and read through the documents; there may be statements of case, statements from witnesses, a proof of evidence from your client, and documentary exhibits. Then, you check that your legal knowledge is up to scratch. You consider what else you need to know, or to have available for court, and write some advice on evidence, calling for extra statements, other documents and so forth. You also have a conference with your client, there may be things you need to tell the client, almost certainly questions that you want to ask. Having prepared as thoroughly as you can, you begin to see where you are likely to be at the end of the trial or hearing, what evidence will be before the court, which issues need to be proved and the probable strengths and weaknesses of both your client's case and that of your opponent. What you need to do now is consider your theory of the case.

I say your theory, because you will have evolved it, but we must be aware of ethical traps here. It is sometimes said that advocacy trainers are good on advocacy skills but worse on ethics. You must not put forward a theory of the case just because it seems to have a good chance of success. It must be supported by the evidence; it must further the objectives of your client and it must not mislead the court. You should always explain your proposed case theory to your client and get their agreement to use it. That is not to say that your case theory must be carved in stone, though. One important thing a novice advocate soon learns is that, when you get into court, things don't always tum out the way you expected them to: As each trial develops, so the way things are seen may change, witnesses become more (or less) credible, an anticipated strong point becomes a weakness; the advocate must respond to these shifts and so must your case theory.

An experienced practitioner at the Old Bailey used to say that he would start several

hares running at the beginning of a trial and see which one the dogs chased. It is permissible to have more than one theory of the case, perhaps intended to meet a variety of possible outcomes. What the practitioner meant was that an advocate must retain adapt ability until the end of the trial when, finally,

any ambiguities must be resolved. He hopes that, when he advanced the case theory in its final form, he chooses the one he feels confident would have the most appeal for the jury.

Themes

It is often said by prosecutors that the Crown does not need to show a motive, to explaii why the accused committed the crime. There is no crime where the elements of the offence include greed, jealousy, revenge, or anger. Nevertheless, when we are asked to determine whether-a particular act was done, a particular state of mind existed, then"' automatically seek out clues that make such an act or state of mind more (or less) likely.

we can see a reason (i.e., motive) for someone saying or doing a particular thing, then we ai more likely to find that the person did say or do that thing. Offering a reason is not necessarily conclusive when we have to persuade others, but it certainly helps.

To Do List

Read and consider the material above. It is considered a refresher as you may have considered several of the concepts in Trial Advocacy Year 1

In order to successfully complete Module 1, please do the following:

Review: Module 1 Lecture Presentation
Discuss: Join your classmates in a Group Discussion regarding the various concepts discussed.( You may use Microsoft Teams to facilitate this discussion with your Tutorial Classmates)
Post-Group discussion: Work individually to create a presentation on case analysis and Theory and Themes...ask yourself do you understand the necessity of doing this and can you explain the importance of same to some one else
Students may read the Inns of Courts UK texts for further guidance.