CASE ANALYSIS - Sturm College of Law



CASE ANALYSIS

(IT’S NOT JUST FOR TRIAL ANY MORE)[1]

The Honorable CHRISTINA M. HABAS

Second Judicial District Court

State of Colorado

1437 Bannock Street, Courtroom 16

Denver, CO 80202

MATERIALS USED IN THIS ARTICLE REFER TO COPYRIGHTED MATERIALS

FROM THE NATIONAL INSTITUTE FOR TRIAL ADVOCACY (©2005). ALL

HAVE BEEN USED WITH PERMISSION.

Case Analysis. The phrase conjures images of even the most optimistic among us of long days spent sifting through stacks of papers; countless hours of research of complex points of law; and frustrating outlines. The pessimists among us think of only one word: BOREDOM.

Despite the complete lack of excitement case analysis engenders, the analysis process is the trial lawyer’s single most important task. Whether we are drafting a pleading; preparing for hearing; getting ready for a deposition; or closeted for trial – we cannot escape the drudgery of case analysis.

Cases entrusted to us are not a jumble of facts and information. Each case includes factual, legal, and emotional components. Failure to recognize and prepare for these components spells doom. We ignore such components at our peril.

Think about the last matter you presented at any stage of litigation. Did you have a clear goal in mind? Did you set up an analytical framework for reviewing the information you had compiled? Did you make tactical decisions throughout the matter based upon your theories of the case? Of course you did. This article and the following workshop examine “that voodoo that we do so well” and articulate the steps in the process, so that we may all improve our efficiency and success in case analysis. We will use the attached case, In the Matter of Robert Reed,[2] a matter involving an allegation of child abuse. Kindly familiarize yourself with this file, in

order to make the workshop more effective and meaningful. There are various exercises included in these materials that you should prepare (in written form) and bring with you for the presentation.

The Principle of the Whole

Any stage of litigation demands that we have a cohesive, consistent theory to present. This is true whether your decision maker is a judge, jury, administrative hearing officer, panel of citizens, or client. We must keep these goals in mind in order to keep our own credibility with the decision maker, and to provide them with a simple framework to make a decision which is in our favor.

Consider an instance when you have heard a story which is internally

inconsistent. The classic case? A dog bites a child. The defense?

1. It was not my dog.

2. If it was my dog, it did not bite.

3. If the dog did bite, it was always a gentle dog.

4. If it was not a gentle dog, the bite was not serious.

5. If the bite was serious, your child provoked it.

One, some or many of these propositions may well be true. However, the credibility of the person making the presentation is severely undermined by the internal inconsistencies of the story.

Does this same theory hold true when the decision maker is a judge instead of a jury? Judges are trained to look, without bias, at alternative and inconsistent legal theories. However, failure to recognize that judges often react in the same ways as the lay public to issues of credibility is short sighted and ignores reality.

Inconsistent theories do nothing more than clutter your record and deplete your credibility. Contrary to some opinion, conflicting theories do not make your success more probable. The ability to develop persuasive case theories requires a thorough and accurate case analysis of your case.

What do you want?

Each and every case starts with one simple principle: you have a client, who has some goal they wish to achieve. Whether that goal is an award or settlement of money damages, an injunction, a property settlement or avoidance of imprisonment, they have a goal.

The second thing each and every case has in common is your client’s story. This is the most pure, unadulterated version of their view of the world, the facts of their case, and their rationale that you will ever hear. The fact that it is not burdened by objectivity, or in some cases reality, should not concern you at this point. You are simply learning everything you can about your client’s world view, and this is the beginning of your case analysis.

As you listen to the story, you will notice several things. First, you will notice that there are gaps in your client’s knowledge of events. The client likely does not know everything that occurred before their damages occurred, or what other actors in the story were doing at any given point. It is also likely that they do not know, or do not understand, the basis of the actions of any other “player” in their story. Many times, there is scientific or medical information that they do not possess. Often times, in alibi situations, the client knows nothing of the core facts of the crime, but knows only where they were, and if you are fortunate, with whom they spent that critical time. The list of potential gaps is obviously more extensive than those listed here.

Listen to your client as you believe a juror would – without legal analysis and bias to cloud your thinking. Listen especially for the gaps in your client’s story, and listen for speculation or assumptions that may be incorrect. As you listen, try to conceive of your client’s information as a story – for vivid images, for important details, and mostly for a clear understanding.

From that meeting, sit down and prepare an effective story, based solely on your client’s version of events, and try to provide enough detail to allow you to convince yourself that what your client wants out of the case is righteous. It is this initial story that will drive the remainder of your case analysis.

What is Important?

Think about the last time you went on a trip. Did you have a firm destination in mind? Did you have an idea of some of the things you would enjoy once you got there? The same holds true for case analysis. Whatever presentation you make, your overriding concern must be to limit your

discussion to important issues. Just as in music, art or any other form of

communication, your audience has a limited capacity to absorb information.

Unnecessary clutter will, at best, camouflage your point, and, at worst, make it disappear.

To determine what is “important” to your presentation, look to the law. This provides you a checklist of what is important from a proof perspective, from the perspective of preparing for any potential appeal, and of course, from a persuasion perspective.

Thus we begin with the first theory of case analysis: Legal Theory. This theory presents you with the reasons why your side should prevail as a matter of law. In general, this theory is guided by the elements of any claim you wish to pursue or defend against, and any defenses available to those claims.

The basis for your legal theory may be found in many forms. Most generally, it is found in relevant jury instructions, or if none are available, in the organic case law. It may also be found in governing statutes, ordinances, regulations or procedural rules.

Essentially, the “Legal Theory” of your case is stated in much the same manner as a legal argument would be. Identify the “law” applicable, and then state it as a story without unnecessary detail. For example, in our case involving Robert Reed, the law is found in the NITA statutes, more specifically at the NITA Juvenile Code Chapter 70, Part 100:

Child under 18 years old

Person inflicting alleged abuse is a parent

Person causes physical injury

Which injury causes impairment or physical or emotional health or loss or impairment of any bodily function

Act is not accidental

OR

Act is not ordinary corporal punishment

There are, of course, other issues included in the statute, however, they clearly do not apply to our situation (such as “death”). Now that you know where you must go in order to successfully prosecute (or defend) this case, the next step is to look to the facts. You cannot limit yourself to the facts as told to you by your client – you must consider all of the facts, good and bad, and fill in all of the gaps your client was unable to fill for you.

Look to the closing argument you prepared as a “story” from your client’s version of events, and fit it into the framework of the legal theory of your case. If your client is Ms. Reed, and she tells you that she simply smacked Robert with a magazine to get his attention and not to hurt him, you must wonder what “facts” are available to prove or disprove the remaining elements of the crime with which she has been charged. For example, Ms. Reed knows little about the medical issues in the case. She may have been present during the incident itself, and seen Robert when he was examined, but she has no firsthand knowledge of the doctor’s trained observations. She is also unable to tell you what the receptionist was able to see during this incident, and what the receptionist was doing as the incident occurred – all important context for the case.

Use some visual imagery to map out your case, attaching the facts you have to the legal theory. It may look something like this:

This is, of course, a very rough and simple piece of your legal theory to establish. Think of the other parts of your legal theory (for example, “which causes physical injury”). What types of things would you look for in order to establish either that physical injury occurred, or did not occur? Some of the possibilities include: redness, swelling, pain, crying, cuts, bruises, broken bones, disfigurement, marks, etc. Which of these possible signs of physical injury exist in this case? Which do not? Are you able to eliminate the possibility of any of these signs entirely? This is how you determine if there are gaps in your story that must be filled in with further investigation, and also how you decide if you can prove what is legally necessary in your case.

What Really Happened?

The next step in case analysis is to set out your “Factual Theory”. This means, what really happened on the date in question? Since you were not actually present when the incident occurred you have no firsthand knowledge of what happened. You have already heard your client’s version of what happened, and possibly have heard or read what others know about the facts. You also potentially have documents, photographs, and various items. But instead of having direct knowledge yourself about what happened, what you have are separate recollections, or mini-stories, from those who were present, and other bits of information. Your job is to assemble these mini-stories, documents and things, so they combine to a complete picture of what occurred.

Remember, you have other information at your disposal as well. You also have information about each witness’ ability to see, hear and observe what occurred; information relating to what they did not observe; and

other information that may be useful in piecing together a factual theory (such as bias or infirmity). In addition, you can test what appears in documents, photographs and physical objects, against what witnesses have said about the story.

This is not the time to be judgmental. This is your opportunity to

cull out each and every piece of information that presents itself in the materials in your possession. Each piece of information is simply an actual event or circumstance: it must not include your personal belief in its truth or falsity, or in its admissibility at trial or hearing, or even a judgment as to its importance to the case. For now, this is an assembly of data in list format. Examination and assessment comes later.

How exactly is this process accomplished? You have likely performed this process time and time again in your work. Rarely have you sifted through case information in precisely the same format as we will use during the workshop.

You may be used to performing this “sorting” in your mind. For our workshop, we separate fact identification/assembly and evaluation into two steps. Begin with one source of information – a witness statement or an exhibit. For our workshop, we will use the diagram of the waiting room where the alleged child abuse occurred. Start with the most basic information in the diagram: the shape of the room; the number of rooms; the measurements of the room. Then move on to items in the room: walls; furniture; people.

Each of these pieces of information should be at their simplest. For example, a piece of information is not “Mrs. Reed was sitting behind a vase with flowers in it.” Instead, Mrs. Reed sat “here” (B on the diagram). There were flowers in a vase. The vase was on a table. The table was 24 inches high.

Do you keep a list of each and every possible piece of information? No. That would involve a useless exercise to cull out irrelevant or immaterial information. Instead, as you are culling out this information, check it against your legal theory picture. Does the piece of information have some link to a part of your legal theory? If it does not fit in with any piece of your legal theory, it is likely to be clutter.

Continue until all pieces of information that fit into your legal theory have been listed and exhausted. Do not yield to the temptation to summarize nor characterize these pieces of information so that they seem more beneficial to your case. Be objective. Simply pull out all of the information you can. Please use the attached case materials to create your list of information for the Reed case.

Once you have your complete list, ask yourself, “are there any gaps in my information?” For example, the diagram does not provide you answers to the questions: What was the lighting in the room?; What color is the furniture?; How many people were there in the waiting room when Robert was struck? Some of these questions have answers in other pieces of information included in the file. Other questions will never be answered. And some of these “gaps” are meaningless to the context of your legal case.

Thus, the next part of the process is to determine what gaps exist in your universe of information, and what gaps exist in the story. Be critical of this part of the analysis, however. Some gaps do not need to be filled. Still other must be filled in order to give your story context and believability. For example, both the lighting situation in the reception area, and the color of the furniture, are likely “gaps” in your universe of information, because you have no photograph of the furniture or lighting information, and no witness has identified that information in their statements. Ask yourself the question: does any of the piece of my legal theory depend upon filling this gap? If not, ask the secondary question: would an objective listener need to know this information in order to have a context for everything else that occurs? Most probably, you will conclude that a listener does not need to know the color of furniture under the information you have been given, but the lighting conditions may well be important in order to determine whether the witnesses had a complete opportunity to see what they claim to have seen. You must be ruthlessly objective about determining whether there are important gaps in your information.

Then you must decide when, and how, you to fill in those gaps. At this point take the time to identify any gaps in the Robert Reed case, keeping in mind the legal theory of your case.

Your list of information must include all information: not just those pieces which support your case. If you ignore the bad, or even neutral, information, you will be incapable of either accounting for that information, responding to the information when your opponent raises the issue, or

including the information in your own theory. More importantly, you will not know whether to include information in your presentation if you do not know whether it has an impact, positive or negative to your case.

Judgment Time

Now comes that wonderful time we have waited for – Judgment Time. You have culled every piece of information from materials available to you. This is the time to determine what information helps your case, what hinders your case, what information is neutral but critical to filling the gaps, and that information having no value nor impact on your case.

As you review your list, begin to look at the context of your Legal Theory. Ask again whether each piece of information advances proof of your claim? Does the information tend to establish a defense? Is it perhaps an interesting piece of information that neither helps nor hurts but is required for believability? Those are “good”, “bad” and “neutral” pieces of information, respectively. Label your information, and sort them into columns. Attached is a Planning Sheet, which provides one method for sorting information. Complete this Planning Sheet with the information determined in your review – identifying each piece of information as “good”, “bad” or “neutral”. Be prepared to discuss these during the workshop.

The Factual Theory

Now you have the building blocks of the case, but in order to state “what happened”, you must prepare a “story” which explains the facts of your case, structured in a way that establishes the legal elements of your claim. This “Factual Theory” does not include flowery language, it is simply a “Cliff’s Notes” version of your case. It is the explanation of the case that you often provide to your partners, your parents, or your friends over a beer to get them to understand the case. Do not give in to the temptation of excluding facts because they damage your case. Your factual theory must account for all information – good, neutral, and bad. This does not suggest becoming inconsistent with your theory of the case (see, The Principle of the Whole, supra). Instead, recognize you must take some action regarding the bad information as they present themselves. Come to the workshop having

prepared a factual theory of the case from the perspective of the prosecution.

The Good, the Bad and the Ugly

Once you make the determination of “good” and “bad” information, you must explore possibilities that account for “bad” information without either sacrificing your credibility, your theory or your case. This is not to suggest you must include every “bad” piece of information in your theory of the case. To the contrary, you must only decide which “bad” information is undeniable. In short, this is the pieces of undeniable “bad” information that will be heard and believed by the fact finder, regardless of your wishes the information didn’t exist. The decision process requires a four step analysis:

First, determine whether the information is relevant under the Rules of Evidence. Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” C.R.E. 401. To determine case specific relevancy, look back to your “Legal Theory” of the case. Many facts are logically relevant, but not all are legally relevant.

The next step is to determine whether the evidence supporting the information is admissible. Make inquiry if there is some obstacle to its admission, such as a hearsay objection?; Is there a witness with personal knowledge of the fact or not?; Is there a ruling from the Court previously which prevents the admission of the information? The process requires us to compare the information against the Rules of Evidence. Do not forget evidentiary foundations, since without the appropriate foundation, even the

best of information will never make its way to the fact finder.

Your third step is to determine if there is information that disproves or calls into question the allegedly undeniable information. Can you combat the information with some information of your own?

Finally, determine whether the information is believable. This last piece of analysis takes lawyers out of their “comfort zone.” It requires us to remove our lawyer’s hat, and consider the information in a non-legal context. For example, there are flowers in a vase on the table in the waiting room. Even if Pat Williams swears on a stack of bibles that she could see through those flowers, no one is likely to believe this information. Accepting it at face value can seriously endanger your case, and your own credibility.

Examine the Robert Reed problem listing all the undeniable information you find in the case materials. Having performed this analysis for undeniable information, you will know those undeniable facts that you may now use in conjunction with the previously determined “good” information for your case. In addition to the “good” information, you have a list of undeniable “bad” facts. This is the time to evaluate the “bad” information and examine ways to deflect or disarm them.

It is the combination of “good” and undeniable bad information, placed together in a cohesive factual theory that tells the basic story of your case that provides you with the basis for performing the final piece of case analysis: the Persuasive Theory.

The Persuasive Theory

Reexamine the Planning Sheets where you placed the good, bad and neutral information? Now is the time for you to quantify that information. Which are the very best, worst, and those to which you may safely stipulate.

Going through your list of information, identify the top five in the good and bad categories. What you determine is the best or worst pieces of information depends upon the Legal Theory of the case, as well as your determination of undeniable information. If there is a bad piece of information on your list that you have determined is indisputable, then it will very likely be one of your “worst” pieces of information, and thus must be factored into your persuasive theory. Perform an analysis and prioritization on the Robert Reed case materials. Be prepared to submit your written “Top 5" lists during the workshop.

Your “Top 5" lists are the virtual core of your case. It is the information you must deal with when determining the emotional tug that will likely persuade the fact finder. They provide you with the heart and soul of your presentation, and it is against this Persuasive Theory that your tactics will be determined.

First, to the bad information. If the bad pieces of information are undeniable, then how can you weave this information into your Persuasive

Theory? Once you have decided that this information is undeniable, there is no ignoring them. You must do something about them.

One way to deal with them is simply to recognize that they are there, and to stoke your own personal credibility bank by admitting their existence. This does not mean that you must trumpet them from the highest mountain tops. Rather, simply recognize they are there and then do your best to demonstrate why they are not critical to the case, or legally relevant.

Another method is to establish a different intent, motive or inference from this bad information. For example, we know that Ms. Reed did in fact strike her son. This is not a good piece of information in our representation of Ms. Reed, but it is nonetheless undeniable. However, if her motive was corporal punishment, then the physical strike is not “abuse” but is instead lawful conduct.

Yet the best method for dealing with a bad piece of information is to use that information to your own advantage by making it part of your factual and persuasive theory. For example, you know that Ms. Williams will likely be seen as a very busy person, who did not have time to observe Ms. Reed and her son at all times. Make this part of your case by considering that it takes a great deal to get Ms. Williams’ attention, and, in fact, that is what happened here. Turn it to your advantage – then the information is no longer “bad” for your case.

The Persuasive Theory is what makes the fact finder feel they have done the right thing if they find in your favor. It is this emotional tug that all human beings share – that leads them to make decisions. It is the basis that will lead the fact finder to find in your favor, even if the fact finder is in a jury room without your guidance, or if the judge is in her chambers reviewing your briefs without the ability to ask questions.

Go back to the factual theory you prepared. It is a basic statement of the case suitable for a layperson to understand. The Persuasive Theory is similarly brief. It should be a short statement that identifies:

The Central Facts;

The “Wrong” to your client which must be righted; and

What you want the fact finder to do.

This short persuasive statement leads you to the emotional tug in your case, because hearing the Persuasive Theory should lead you inexorably to that tug.

We have not prepared a Persuasive Theory on the Robert Reed case for the simple reason you will prepare your own Persuasive Theory during the upcoming workshop. Consider this, and include all three of the above concepts when you craft your Persuasive Theory.

The Grabber

We have now reached the point where we are ready to start off your client presentation. You have mere seconds to grab, and hold, your audience’s attention. Do not waste that opportunity. Resist the urge to provide a procedural background, or concoct a “too cute” opening line. You have one or two sentences to grab attention, hold it, and force a conclusion.

What feeling do you want to convey to the fact finder? Is it that Ms. Williams loves children?; Is it that she is a stickler and follows rules, including those that protect children?; Is it that she was frightened at what she saw?; Is it that she was worried for her job if she did not report what she saw? Any of these, and others, are appropriate vehicles for the Robert Reed case. All of them find a factual basis in the file. You must choose which feeling you want to convey.

The Grabber likely plays to your own first instinct when you initially reviewed the file. It is the conclusion you reached for yourself when you were presented with the case, before you allowed yourself to be persuaded by legal theory and working with the witnesses and exhibits. It is a way for you to see the forest, and not just the trees. When you present your case if you can somehow transport yourself to the time of your own first analysis

you can share those feelings.

Having accomplished case analysis as set forth above, make an attempt at crafting a “grabber” for the presentation. You might consider using the most vivid image that came to you from listening to your client. A detailed, strong description of a picture can transport your listener into the story, and give a memorable basis for them to view the remainder of your case. Consider this a “filter” through which your jury, or judge, will view all of the witnesses and other evidence in the case. Create a filter that is understandable, and honest.

Putting it all Together

You now have all of the nails and boards of your case, and the tools to put them together. Begin to build your presentation. The analysis just performed will give you a framework to make decisions which has an impact upon all of the following portions of a case:

Voir Dire;

Opening Statement;

Direct Examination (Order of Witnesses; Content);

Cross Examination;

Visual Aids (Exhibits and Demonstrations);

Closing Argument; and

Jury Instructions

Now that you have done the critical analysis of your case, sit down with the original closing argument you prepared, based only on your client’s view of the case. Does it stand up to the analysis? Must you make changes in that closing in order to give the fact finder a believable and memorable story in the case? Use all of your powers in argument to prepare this version of the closing argument. Then, work backwards from that point. Your Closing Argument provides you with a checklist of information that you must enter into evidence during trial. It also provides you with your own filter against clutter: If the information you seek to obtain from a witness, from an exhibit or by your own argument is not included in your Closing Argument, and therefore fails to fit into your three theories of the case – throw it out! It is clutter, and will not advance your cause. It may be a beautiful series of questions that demonstrate your prowess in cross-examination, but it is pointless, and you lose momentum and opportunities to convince and persuade. After all, this is our job, isn’t it?

-----------------------

[1] © 2005 Christina M. Habas. All rights reserved. No portions of this article may be reproduced without the

express written permission of the author.

[2] MATERIALS ON WITNESS EXAMINATION. Portions of these materials are excerpted and expanded upon

from Bruce A. Boyer and Thomas F. Geraghty, Problems and Cases for Training the Child Advocate (NITA

1994). These materials were assembled by Mark S. Caldwell. Special thanks to Richard Cozzola. © 2002 National

Institute for Trial Advocacy. All rights reserved.

-----------------------

Rbt under age of 18 years

Birth Certificate

Mother’s testimony

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download