When we sit down with the witness statements, along with the charge sheets or pleadings, we want a method to analyse and prepare the case that we know to be comprehensive, motivating, efficient, and successful.
The following method works because:
1. It respects the audiences that we must persuade;
2. It reduces the likelihood that we’ll overlook some issue of law, fact, witness, or environment;
3. It provides one seamless tool that we take from our preparation stage into the courtroom;
4. Whether we work solo or with others (be they lawyers, paralegals, students, competition team colleagues, our witnesses) this method encourages a multi-perspective approach to the tasks of preparation and case delivery.
Trial preparation is about recognising the strengths and weaknesses of your case, planning a trial delivery that reflects that recognition, and – so far as your native skill and experience allows – ensuring that you have given yourself the best chance to deal with the unexpected.
The unexpected is the norm for all trial work. A contest, with a cast of characters each of whom has their own agenda, inevitably means that a trial journey will produce most of the emotions from despair to hallelujah, your hope being that because of your preparation and skill you’ll have more of the positive than the negative.
Being quickly and appropriately ‘reactive’ is the hallmark of the good advocate, just as it is the hallmark of top- level performers in every field (be they sportspeople, surgical teams, artistic performers, or commanders of military, police and emergency response units).
Such reactive insight does not bloom in a blinkered environment. It draws upon the broad domain. Real cases, unlike case files for teaching or competition, do not observe ‘the only facts are the ones in the statements’. Real cases always have missing facts and they can be the most important in the case: knowing that one needs to find them, knowing how to find them, knowing how to minimise their absence (when your search efforts fail), and knowing when to reveal them is advocacy magic.
It begins, as does every magic show, with preparation. So let’s begin.
Recall a case that you lost but expected to win. This may be a real case or a student competition. It may be criminal or civil. What’s important is that you were so disappointed by your loss that it rankles. Your memory is sharp for the legal issues and facts in that case. It is even sharper for the reasons why you lost. Perhaps you forgot some point of evidence admissibility. Perhaps your key witness sank without trace in the witness box while you sat at your lawyer’s table speechless and impotent. Perhaps you overlooked an authoritative decision that went against you.
Goaded by these unpleasant memories take a very large sheet of paper (such as deli or butcher’s paper). Even better find a whiteboard. Whatever your choice the surface must be large. Now draw some pizza size circles randomly on the board. If you have just drawn three small circles in a vertical row like traffic control lights, or horizontally like the tail lights on cars, erase the effort and try again. Draw one circle for each element of that fateful charge or cause of action. Within the pizza write a caption identifying the legal element.
Now introduce the environmental forces. Use another shape for these, but once again the spread must be random. An environmental force is something about the case that you know will influence the outcome. You don't know this as a lawyer: you know it as a member of your community. It’s the elephant in the room. For example, a man who suffers from a mental illness murders his partner by cutting her throat. The defence is legal insanity. The environmental force is that the jury don’t want this man free in their community.
Need another example? A wealthy, powerful man is accused of sexual assault on a female hotel staff member who enters his suite. The alleged victim complains quickly. He says the interaction was consensual. It will be his word against hers. The environmental collision is power and success where lies are defensibly strategic on the one hand, while on the other the ‘how do we get by’ world of refugees, bare survivors in which lies about some matters (but not all) are daily bread.
Some, more cynical and world weary than I, might think of these environmental forces as those human prejudices that relate to fears and dreams, be that of race, religion, sexuality, mental illness, dark places, even appearance.
With legal elements and environmental forces out there in your space introduce the third and final free floaters: the witnesses. Name each one and then put around them the characteristics that your audiences are going to notice: stunning, police informant, decorated for bravery, suspected of fraud, criminal history, record holder, lacking confidence etc.
In this space of legal elements, environmental forces and ‘warts and all’ witnesses you now introduce the relevant, admissible facts. Attach each such fact to an appropriate element, force, or witness. A fact may attach to one legal element, or it may attach to several, as well as an environmental force, and more than one witness. The distributing of these facts forces you, the case preparer, to analyse and evaluate the strengths and weaknesses of your case.
Stand back from your display and taking as much time as you need absorb the information. Draw links between those places where the same fact appears. You (and anyone working with you) will now ‘see’ strengths and weaknesses.
For example, a plaintiff or prosecutor will be seeing: Do I need corroboration for that fact? If so, who is providing it? Do I have messengers who will be found credible by the decision maker? Is that fact in admissible form? If not, how can I cure the problem? Looking at that legal element and the facts that I’ve got on display am I short of one or more facts to prove that element at the required standard of proof? If I am short then what inquiries, subpoenas etc need to take place to fill the gap?
A defendant, looking at their version of the same visual will be marking those same strengths and deficits but asking, Will a focus on this, that, or those deficits (legal, environmental, witness or facts) be enough to show that our opponent cannot meet the required standard of proof?
By using thicker and thinner lines, various colours or both, you can mark up the stronger aspects of your case on all four parameters. You can ‘see’ which is your strongest legal element, who is your best witness, what are your strongest facts, and the environmental forces that are most supportive. Likewise you can see and mark the pitfalls and shortfalls.
You can now test these conclusions by asking ‘What if?’ and ‘What about?’ and ‘What then? This is the essential rehearsal for performance. At trial ‘intuition’ needs to be primed and this is how you set it up.
Experienced advocates will find that the above approach works well as either an efficient ‘solo’ preparation tool, or as a means of getting the best suggestions and inputs from any assistance (be that less experienced litigators, the client, witnesses).
If the case is not settled or plea-bargained before trial then the cross over value of this approach as being useful in both preparation for, and performance at trial now appears. We know the guideline to start and finish with strong points and to bury our weaknesses. We must prioritise everything we are going to present while responding to whether the decision maker is law focussed (bench trial) or fact focussed( lay jurors). Given that our case comes out of the mouths of our witnesses the most likely first cut for plaintiff or prosecutor is to decide the order of witnesses, then to fashion the order of topics to cover with each witness to ensure decision maker interest and confidence. That prioritisation can be marked on the diagram with whatever system for ordering people, legal elements and facts that is attractive.
Defendants meanwhile are preparing their cross-examination by marking their route of ‘cross indoctrination’ (see cross-examination articles in the blog index) through their visual analysis of their opponent’s likely case. They are picking one or more of fact, witness credibility, environmental force limitations and planning how to use their opponent’s witnesses as the primary means to persuade the decision maker that the case fails because one or more legal elements is not proved. If that fails then they too go into a pre planned development of evidence with their witnesses.
I like to think of that last step – the prioritisation- as being the time when the visual is converted from a two dimensional display to a 3D; that is, the prioritising brings to the foreground those aspects of the case that I must emphasise and pushes back those aspects that are less important. The visual display is now a 3D matrix because of the stronger and weaker links that have been drawn between the various legal elements, forces, and witnesses. This matrix is the primary tool at the lawyer’s table: it is both prospective (as to what needs to be done) and reactive (to deal with what has been done).
If you have followed the method outlined above then it should now be clear to you why you lost your ‘test’ case. It should also be clear whether another approach would either have won, or (as if often the only sensible approach in litigation) minimised the loss.
A recent article on this blog discussed technology that’s now available for the advocate in the court room. ( See courtroom technology in the blog index.) Here’s my forecast. One of today’s law students with a programming bent is going to take the ideas in this article and write a program that will allow litigators to do all the above electronically. The basic work will be done on a clever whiteboard and instantly stored on the 3D pad of each team member. The matrix (just a permutation of CAD) will be responsive to advocate inputs: the strength measurement given to the links drawn between the elements will entail that as soon as the advocate reassigns a value to any component the entire matrix will respond with consequential changes to every other component, link and priority, effectively hinting to the advocate how to respond in real time to what’s happening in the court room.
The devil in me says that the hacker juror, journalist or saboteur will be hard at work aiming to get past the security of the legal teams’ electronic systems. And what then? Well, the opportunities for a John Grisham like thriller are awesome.
Hugh Selby © July, 2011 hugh.selby@anu.edu.au
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