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Wednesday, September 22, 2010

Initial Case Analysis for Trial Teams

This post is from Wes Porter. Wes teaches trial advocacy, evidence and white collar crime at Golden Gate University School of Law in San Francisco. If you are involved in coaching trial teams, please take the time to comment on Wes's approach to case analysis.

The fall mock trial season is upon us.

The trial competitions’ fact patterns come in, we select our trial teams and advocacy teachers and trial team coaches begin to meet with their trial teams. In recent years, the most dramatic change to my approach with trial teams, and with our adjunct professors and trial team coaches, has been with these initial meetings and the instructor’s role. I have abandoned my former approach in favor of an approach which benefits students more down the road in practice, than in the impending mock trial competition. I am interested in thoughts and comments about your initial meetings with trial teams.

I start from the premise that (i) the review, analysis and organization of a “case file” as an advocate and (ii) “brainstorming” case theory and potential themes are critical advocacy skills. These are skills that may not translate into tangible results in competitions, but they are equally worthy of our attention in training future advocates. Stated differently, we should not allow ourselves, other instructors or even more seasoned (read: more confident, more vocal) students to review, analyze, organize and “brainstorm” for our student competitors. Like all other aspects of our skills training, we must communicate our expectations to our students and provide modeling and critical feedback about their performance. Lastly, we must impress upon our competitors the relative importance of this skill as compared to the glitz and glamour of the significant cross exam and closing argument, to which they will all want to fast forward. In practice, without the hard work with the file and early “brainstorming” about case theories and potential themes, the dramatic closing or “big” cross exam will never see its fullest potential.

What are our expectations from all mock trial team competitors in these initial meetings? And what are the teaching points that we hope the students can gain from “their time” with a file before we become involved?

I have three expectations / teaching points for these initial meetings: review, report and review again.

First, review
: we expect students to spend their own time with a new case file reading, re-reading, structuring, dissecting, analyzing and “brainstorming” case theories and potential themes before their instructors and teammates are involved.

Second, report: we expect our students to communicate independently their hard work with the file and their own persuasive ideas (the good, bad and ugly) about their case presentation.

Third, review again: we expect student to return to the file with different perspectives and ideas after these initial meetings.

To these ends, after assigning attorney roles, I used to require closing arguments during these initial meetings. A closing, as we all teach, should demonstrate a careful review of the file, persuasive organization of the facts and the semblance of a case theory and theme. Sometimes they did. Most often these initial closings reflected poorly organized speeches about some of the facts and little true consideration about the case. I abandoned the “closings approach” a few years back.

In my new approach aimed at these same pedagogical goals, I, and our other instructors, play supervising attorney or senior partner conducting an initial case review. I read the file, but I do not use what I know other than to ask questions of the advocates. For instance, I require the party with the burden to set out the claim or charge, their case theory, anticipated witness testimony, other evidence, possible themes and evidentiary issues. I do the same for the opposing attorneys. I only ask questions. To inquire about potential themes we may ask, how will you explain that to jurors so they understand it? I ask questions that lead to more questions, research, meetings and, most importantly, a purposeful, re-view of the file.

These initial meetings should gain a slight reputation in the mock trial program. That is, if done right, the level of review it takes to be “ready” for an initial meetings with the supervising attorney, I believe, is more significant than giving a preliminary, shoddy closing and more beneficial to the students in practice. When students repeat as trial team competitors, the quality of the reporting at these initial meetings improved exponentially. I know I can analyze, organize and “brainstorm” a file and my case. We owe it to our students to teach them how to do it as well. I look forward to learning about other approaches for these initial meetings.


  1. I have to agree with Wes in principle, but I would go even further. That first meeting, or series of meetings, must be focused on case analysis - and I believe it is crucial to the overall success of the team. If they learn and develop their analytical skills through case analysis of the problem then they will find themselves empowered to deal with the issues that are unknown, but that always arise, when their approach meets that of another team through the rubric of competition. I seek empowerment of the advocate so that in the moment they can make the right decision when trying the case. This never happens if they are spending all of their time memorizing their roles. It has a chance of happening if they have done the heavy lifting of frustrating case analysis and arrived at their case theme and theory organically. It just makes everything bear the burden of common sense. It also makes them better lawyers. Competitions are controlled experiential learning, and many of the lessons that we apply in our clinic, internship, and externship settings work equally well here.


  2. Spot on, Wes. My courses all start with everyone sharing their knowledge ( real or imagined) about the facts and the law thrown up by the case scenario/case file,

    Quite apart from this sharing being essential to team dynamics and growth it also introduces everyone to the primacy of a case analysis: do it, and progress; don't do it, and flounder.

  3. I absolutely agree with everything that's been said so far on case analysis being important really above all else. But here is the conflict that I feel every semester: no matter how long and comprehensive our group case analysis is (we could spend weeks unpacking each facet of a case file), after we've begun actually assembling the various aspects of the trial and putting our ideas into practice, our case analysis inevitably evolves. So my question is this - how long do you spend on case analysis before you start getting people on their feet and trying things out?

    I've found that stepping back and re-examining the case is something that can, should, and must be done throughout the trial prep. That can lead to some frustration, as students want to be able to write down their theories and themes on the first week and take them for granted. But I feel like any theories or themes that come out of the first week are not going to be as well thought out and battle tested as ones that are honed throughout the prep period. I also think it empowers the students to know that nothing is sacred - that if an idea isn't working, it must and can be fixed.

    I agree with the previous points, that the more focused and rigorous the case analysis is in the beginning, the smother the process progresses. But it's still going to be a process.

  4. With respect to what Adam just wrote, isn't the process of continuous case analysis inherent in regular trial practice as well? I don't have nearly as much experience (or success) coaching trial teams as Adam, but I can tell the difference between a team that has memorized a script and one that has actually analyzed a case and can roll with the punches or capitalize on opportunities that may present themselves during trial. I think the initial case analysis gives a baseline, but it's like a first draft of anything--it will change, develop and become better than the original product.

  5. Continuous case analysis SHOULD be inherent in trial practice but few can tread that path. The human problem is wanting the security ( and comfort) of a settled plan. Changing the plan means admitting that it's not good enough: how many leaders do we know who can do that? Not many, not even a few. And changing the plan means changing the delivery. Now that's frightening because it introduces the unknown into the mix. And, in real life, what about the client: changing the plan might look to them as though you're not good enough.

    So Adam, how do you manage the egos of your team members when the wheels are falling off (or least seem to be a bit loose) ? Do you tell them, or do they tell you, 'Um, we got a problem'. And what's the safe process for coming up with a fix?

  6. As Hugh says, sometimes re-analysis has to be instantaneous. I can remember finishing jury selection, looking at the folks in the box and realizing (to my horror): "I can't give that jury the opening statement I worked so hard on." That's where Charlie's "empowerment of the advocate" has to come into play, although another way to put it is "thinking on your feet." This may be the hardest thing to teach students, since how to inculcate that kind of confidence in your decisions will vary from student to student. I don't coach trial teams, but I judge a number of competitions and it's always a pleasure to see the budding advocate who can confidently shape his/her presentation to what's happening in the courtroom, all the while staying as much on course as possible. -- Bob McGahey