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Sunday, October 10, 2010

The Case for Continual Case Analysis

No Plan Survives First Contact with the Enemy
--U.S. Military Planning Axiom

Wes Porter recently posted an article about case analysis that I found quite insightful. I'm glad I got it in time to use it with my trial team. I emphasized case analysis to a greater extent this year, requiring more from the students at the beginning than I have in the past. I agree with Wes that it's important to establish a "reputation"--or, in other words, a set of expectations--for the program. I actually had a student quit this year's team after learning how much work it would be.

In his comment to Wes's post, Adam Shlahet identified another important consideration. We can't plan forever, because at some point, we have to start prepping for the competition. Instead, we have to teach our students to accept the fact that they will be refining their case analysis right up to the last round of the competition. They must be able to develop the flexibility and skills to be able to do this.

A technique that I use with my students is to assign a formal case analysis memorandum, followed by the preparation of a complete written trial outline and script. I give them a couple of weeks to get all of this in order. Then, right after the deadline, we try the case all the way through, from preliminary matters to closing arguments. I record the trial so they can see their progress throughout the semester.

What I've found is that the students are amazed by how much work they still have to do. Cherished ideas or theories don't often survive the first adversarial clash with another set of students. This first trial is much better than any lecture I could deliver, and I prefer it to my taking a more directive role in their case analysis. The lessons they learn themselves seem to stick better than what I try to deliver in lectures and critiques.

In Army command post exercises, we frequently discussed the maxim, "No plan survives first contact with the enemy." To avoid disaster when contact occurs, commanders develop contingency plans in advance, but they also employ a continuous planning process.

I think it's important for advocates to learn the flexibility required to respond to contingencies, both planned and unplanned. If their trial preparation process consists of nothing more than memorizing a script, they won't learn what they need to learn. But if case analysis and planning is viewed as a process, rather than a single step or event, they will be better prepared to succeed at trial.

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