August 3, 2012
Learning how to perform competent case analysis and conduct adequate initial preliminary case preparation and planning is crucial. Doing these things–and doing them well–often is what separates the extraordinary from the merely competent in pretrial advocacy. To accomplish the first of these tasks–case analysis–you must choose an organizational construct that processes information, prioritizes the value of that information and then identifies crucial legal and factual issues applicable to the case.
The choice for how to do this is as varied as the Advocates who analyze cases. Many different types of organizational techniques exist allowing you to get a handle on this process, but not all techniques are created equally. This is an important step, because the way you conduct case analysis has long-term consequences. It affects the clarity and persuasiveness of your position throughout the litigation, and either assists you or prevents you from identifying potentially case dispositive issues at a point where they can be properly addressed.
A superior case analysis (1) assists advocates in understanding the relevant legal and factual issues, (2) brings clarity and focus to the issues the advocate wishes to emphasize, and (3) provides a moral theme for the duration of the pretrial phase of litigation with a view toward enabling a jury to decide the case in the client’s favor in the event trial becomes necessary. So how to do it? There are seven general steps that you normally perform when you get a case. They include:
- • Organize the case file: use chronologies, time lines and topics
• Identify the procedural and substantive legal issues
• Identify the factual issues: separate facts into the good, the bad and the downright ugly
• Connect the facts to the law
• Identify the moral theme: the sense of injustice, or “the most appalling thing”
• Plan your presentation in reverse: from closing argument through the case-in-chief to opening statement (consider your opponent’s case as well)
• Verify the evidence: ensure that you have the witnesses to admit sufficient evidence to support your legal theory, factual theory, and moral theme.
While case analysis is certainly the starting point for the planning and preparation of the new case, it is also an undertaking that continues throughout the entire course of the proceeding – it permeates virtually every aspect of pretrial advocacy. Despite those facts, it is only one part of the preparation and planning for litigation. You need to undertake additional tasks and face other key issues at the beginning of the case. Much of the informal fact investigation into the merits of both the possible claims and defenses that have been or might be raised occurs now. If you represent the claimant you will need to address other vital concerns at the outset such as considering what claims to join together and determining what other persons or entities should be made a party to the anticipated lawsuit either because of strategic importance or legal necessity. In general terms if you use the 7 following steps you will be on the right track. They are:
- • Case Analysis
• Informal Fact Investigation
• Joinder of Claims
• Additional Parties
• Subject Matter Jurisdiction
• Personal Jurisdiction
As you might imagine, these seven steps capture the essence of an entire course in civil procedure by placing it in context as you represent clients. Once you’ve identified the lay of the lay land so to speak, things get interesting. Let’s look at the informal discovery process.