There is no getting around it – the process of learning a case is hard work. It means taking the time to interview the client and potential witnesses, and reviewing documents to separate the wheat from the chaff. It means pulling back from your notes long enough to simply think about the potential case – does it legally state a case or defensible position? Would a jury be compelled to render a verdict in the client’s favor? At some point, it’s time to start organizing all the disjointed pieces into a relatable and legally viable trial story.
I propose that there are at least five perspectives from which to view the eventual trial story, as one dives into and learns a case. Each perspective must be mastered by a trial attorney to have any hope of winning. Consider the following:
Once you’ve gained a reasonably good handle on the case facts, you need to begin organizing them in chronological order. Create a timeline in table format. Also, consider creating a demonstrative exhibit that displays the chronology in graphic form. Remember, a timeline is the logical format to tell a story and great trial attorneys are master storytellers.
The eventual trial story will be told through the mouths of witnesses. Once you get a handle on the chronological order of the facts, begin thinking about who will tell that trial story. Your set of trial facts should be organized by witnesses personally acquainted with those facts. With those facts in hand, begin constructing witness outlines. Remember, there will be witnesses outside of your control, e.g. your opponent’s. You will need to make an educated guess about their version of the facts as well and include that in the timeline.
Documents, especially in a commercial case, may be critical to telling your trial story. Depending on the circumstances, they may be used as substantive proof for impeachment purposes or both. Keep in mind there are several evidentiary doctrines that govern the admissibility of documentary evidence. Check out my Quick Reference Guide to Federal Evidence if you need a refresher on the admissibility of documentary evidence. Be sure to link important documents to the witnesses whom can authenticate them.
Before you commit to taking a case to trial, know that all these facts arranged chronologically and tagged to a witness or document, can legally state a claim or a defense. You’ll need to identify the elements of the causes of action and affirmative defenses you intend to plead and have ascertained you have provable facts to back them up. To some extent, these facts may not be fully ascertained until you conduct discovery or further investigation. To satisfy your ethical obligations, you at least need to have a good-faith belief you will be able to prove these facts via admissible evidence.
After first making sure you have a legally-viable claim or defense, be thinking about case themes that will motivate a jury to decide in your favor. You need to tag the facts to the case theme you’ve selected. This will become the skeleton for your closing argument. It’s not too early to brainstorm your closing argument – even when learning the case.
My advice is to store all this information digitally. There are several excellent programs that can organize case information for most or all these perspectives. CaseMap, FactBox and CaseFleet are among them. Consider the free trial each vendor offers. Regardless of that choice (and if nothing else, at least keep this information by hand), take the time and do the hard work to gain these perspectives, and you’ll be well along the way to gaining a winning edge.