In recent months, this blog has published several posts (available here) on the importance of continual case analysis in trial preparation. Our bloggers have agreed that case analysis is critical, that it should occur early in the process of trial preparation, and that it should be flexible--a work in progress that adapts itself to new information and evidence.
Let me add that case analysis should strive to simplify: to bring order out of chaos and present the case in its simplest possible terms to the fact-finder. Simplicity and order are difficult concepts for many law students to grasp, especially since they've spent the first two years of their law school career essentially learning how to find subtle complexities in everything they read or hear about.
For that matter, simplicity is a difficult concept for lawyers to grasp. I recently attended an Inn of Court meeting that featured a simple hypothetical on how to apply a rule of evidence to a fact scenario. After thirty minutes of lively debate, in which some participants argued both for and against the same proposition, we were no closer to resolution than we had been at the beginning. The moderator turned to a federal judge who was present and said, "Judge, what's your take on this?" His reply was a masterpiece of simplicity: "It's like I told you before the meeting. It's probably coming in. Under the Federal Rules, almost everything is admissible." (I use this only as an example of the benefits of simplification, and not as an effort to begin a debate about whether almost everything is admissible under the Rules.)
One thing I've observed about students and lawyers who overcomplicate their case analysis is the attitude that EVERY FACT in a case file must be woven together in a cohesive story that picks up every loose thread, inconsistency, or even irrelevancy. They are not able, in other words, to discriminate between valuable evidence and useless or trivial information. This tendency can lead to some remarkably complex theories that no one--least of all the presenter--truly understands. I've actually noticed the same phenomenon in some of my criminal defense clients, particularly after they have the benefit of discovery and are able to read what everyone else had to say. It's amazing how complicated their stories can become as they try to ensure that everything is accounted for and nothing is left to chance.
Life, of course, is not like that. No one is omniscient, and there are always inconsistencies and loose ends. I'm suspicious of stories that don't have them.
The best advocates learn to separate the wheat from the chaff and to find the real story behind the mountains of documents and reams of deposition transcripts. They learn to make things easy for the jury. This summer, I posted a story (available here) about my friend Hardy Menees, who agreed to take over the trial of a complex intellectual property case on the condition that his co-counsel would allow him to present it as "an old-fashioned stealing case."
When I have students who struggle with simplifying their case, I often have them role-play teaching their case to a kindergarten class. Their peers play the role of kindergarten students and chime in with questions such as, "Ms. Jones? What's comparative fault? Is that bad?", or "What's 'heinous?' My brother said that word and got in trouble."
I figure if you can't explain your case to a kindergarten student, you probably haven't boiled it down to its most simple elements.
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