LAW DEVELOPMENT CENTRE

2017 / 2018 BAR COURSE

TRIAL ADVOCACY SKILLS TRAINING
TERM 1 WEEK 3
10 – 13th October, 2017
th

CASE ANALYSIS AND TRIAL STRATEGY

Introduction
Persuasive stories cannot be told in vacuums because life, from which these stories are taken, does
not happen in vacuum. The Advocate as a story teller in analyzing the case entrusted to them must
develop and Theory of the Case and give it a theme/hook to sell the theme.
Once these have been developed, then you must come up with a Trial Strategy or Plan for your
case. Both in terms of the evidence you will lead and challenge and the type of legal process you
will utilize to get the best or most favorable remedy quickly and affordably.
Theory
There are several ways to define a Theory;
1. Your theory is the adaptation of your story to the legal issues in the case. A theory of the
case should be expressed in a single paragraph that combines an account of the facts and
law in such a way as to lead the trier of fact to conclude that your client must win. Modern
Trial Advocacy by Steven Lubert 4th Edition.
2. “That combination of facts (beyond dispute) and law which, in a common sense and
emotional way, leads the jury /judge to conclude that a fellow person is wrongfully accused
(or should not be severely punished).” - Tony Natale [Supervisory Asst. Federal Public
Defender, Federal Public Defender Organization for the Southern District of Florida,
Miami, FL] .
3. “One central theory that organizes all facts, reasons, arguments and furnishes the basic
position from which one determines every action in the trial.”-Mario Conte
4. “A paragraph of one to three sentences which summarizes the facts, emotions and legal
basis for the citizen accused’s acquittal or conviction on a lesser charge while telling the
defense’s story of innocence or reduced culpability.” - Vince Aprile
5. How the facts fit into the Law. Or why your client should win but explained by the facts.
For example, not “He was negligent” but instead “He didn’t look.” Steve Fury.
To develop and express your theory, ask these three questions:
• What happened?
• Why did it happen?
• Why does that mean that my client should win?
If your answer is longer than one paragraph, your theory may be logical and true, but it is
probably too complicated.
A successful theory contains these elements:

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 • It is logical. It is based on a foundation of undisputed or otherwise provable facts, all of
which lead in a single direction.
• It speaks to the legal elements of your case. All of your trial persuasion must aimed at a
"legal" conclusion. Your theory therefore must be directed to prove every legal element
that is necessary to both justify a verdict on your behalf and preserve it on appeal.
• It is simple. A good theory makes maximum use of undisputed facts. It relies as little as
possible on evidence that may be hotly controverted, implausible, inadmissible, or
otherwise difficult to prove.
• It is easy to believe. Even "true" theories may be difficult to believe because they
contradict everyday experience or because they require harsh judgments. An airtight
theory can encompass the entirety of the other side's case and still result in your victory
by sheer logical force.
A theory of the case consists of the following parts:
1. The relevant law - The law or jury instructions that apply to the issues which arise in your case.
2. The facts of the crime that are beyond dispute - Those facts which (no matter what you do or
say) will be believed by the factfinder as true. These include those facts which you will be able
to present (through affidavit, direct examination or cross-examination) which the factfinder
would likely accept as true.
3. Common sense - Ordinary people must believe based on their life experiences that the defense
theory of the case is what happened.
4. A Theme - A word, phrase, or simple sentence that captures the controlling or dominant
emotion and/or reality of the theory of the case. These often motivate more decisions by
people than logic. Therefore, a theory of the case should generate feelings in the factfinder as
to what, how, and why the case occurred.

A detailed look at Theme

Some definitions;
1. Best presented in a single sentence, a theme justifies the morality of your theory and
appeals to the justice of the case. It has no independent legal weight, but rather it gives
persuasive force to your legal arguments. Just as your theory must appeal to logic, your
theme must appeal to moral force. Modern Trial Advocacy by Steven Lubert 4th Edition
2. Theme may also be defined as that part of the “story” presented in court which the lawyer
selects and presents because of its particularly persuasive effect in relation to the ultimate
conclusion which the lawyer wants the tribunal of fact to draw. Opinion Writing and Case
Preparation Manual College of Law.
3. In 10 words or less conveying how and the moral basis why a Court should decide in your
client’s favour. Or present it as a News Paper Headline.
4. A one sentence distillation of your case theory.
The most compelling themes appeal to shared values, civic virtues, or common motivations. And
each of these have their opposites that can also be contrasted against them.
• Examples of shared values – Truth, Justice, Peace, Mercy, Public Good/Policy, Unity,
Love, Fairness, Defending the Defenseless, Defence of Property etc

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 • Examples of common motivations – Family, Friendship, Patriotism, Success,
Achievement, Loyalty, Faithfulness and fidelity, etc
• In a case for breach of contract, where the cause of action is specific performance, your
theory will explain why a verdict is compelled by the law. Your theme can be "They honour
money but not their promise." Or you might try, "You can’t sell some property, and keep
it too."
• In a criminal case, where the accused is an unwilling participant, an example can be
unwilling participant - forced to rob or where the accused is an unwilling accomplice -
victim of fear
• Once you have developed a theory and theme for your case, then you need a Trial Strategy.
(Frame or Plan).

Trial Strategy
From developing the case theory, to making an opening statement, to the objections made, to the
questions put to witnesses during the examination in chief, cross-examination and re-examination,
to the impassioned final submissions attacking the credibility of an adverse witness, everything an
advocate does and says in the courtroom should be planned in advance, hence the need for a trial
strategy.
Below are the various parts of the case that make up your Trial Strategy which you must plan;
1. Planning Your Legal Argument/Submission
Ask yourself these two questions: 'What do I want to say at the end of the case? What evidence
must I introduce or elicit in order to be able to say it? The answers will give you the broad outline
of your entire case.
2. Planning the Presentation of Your Case.
The major task of trial preparation is working with the facts; organising the evidence you have,
identifying and locating additional evidence you need, and planning effective ways of presenting
it. Developing the evidence is an integral part of refining your case theory.
a) Consider Your Potential Witnesses and Exhibits
b) Evaluate Each Witness Individually
➢ Factual Weaknesses
➢ Evidentiary Problems
➢ Credibility Problems
c) Evaluate Each Exhibit Individually
➢ Evidential Problems or Is it admissible
➢ Which witness will tender it
d) Decide Which Witness to Call and their order.
Irrespective of the number of witnesses available, one should make a positive choice of whether
to call each individual, and not put every potential witness on the stand as a matter of course.
Determination of the order of calling witnesses will be influenced by practical factors beyond one’s
control, such as the times when particular witnesses are available or the rules of evidentiary

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foundations that require calling some witnesses before others. However, within these practical
restrictions, the effective ordering of witnesses will help an advocate to present a logical,
understandable case that highlights its strengths and hides its weaknesses as much as possible.
Consider the following suggestions; plan to start with a strong, important witness who can describe
the event; start with witnesses who can set the scene, authenticate pictures of it, and describe the
motives of the main actors; in general, call witnesses in chronological order, e.g., the plaintiff and
eyewitnesses first to describe the accident, then witnesses to prove damages; call corroborating
witnesses after a primary witness has testified; call weak or minor witnesses in the middle of your
case; if several witnesses are needed to lay a foundation, such as a chain of custody, call them
seriatim; call lay witnesses first and expert witnesses near the end, since they are generally drawing
conclusions that will not make sense until the Court understands all the facts; finish with a strong
witness. This takes advantage of the principle of recency.
3. Planning Your Cross-Examinations
Anticipate in advance evidence that should be objected to, and places where your opponent may
object to your evidence. You need to decide whether the judge / magistrate will sustain any of
these objections and exclude the information.
4. Suggested Tool
One of the most common ways of organising your presentation of evidence is to tabulate or chart
the case. This technique involves making a chart in which the elements you need to prove are
matched with a list of witnesses and exhibits available to you. You can then comb your interview
notes, witness statements, exhibits, and affidavits, recording on your chart every important piece
of admissible evidence that will help you prove your theory of the case. The chart can form an
outline of your case and help assure that you call all witnesses and introduce all exhibits that are
helpful in advancing the case.

Suit disposal strategy

After an advocate has planned their case theory and trial strategy, they must come up with a
strategy informed by the above two aspects, on how they shall dispose off the case. These
strategies may defer depending on the nature of the case and below we consider both civil and
criminal prosecution and defence strategies.

Civil Prosecution (litigation or ADR) Civil Defence

Obtaining maximum compensation / recovery Adduce evidence challenging entire claims
Counter claim for own losses
Use both above to reduce liability
Settling at earliest Settling at earliest
Separate claims / joinder of parties and Technical issues with claims, joinder of
claims. parties and claims
Criminal Prosecution Criminal Defence

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 ➢ Choice of charges to prefer / persons to
charge.
➢ Multiple charges / alternative charges.
➢ Consider separate trials / joinder of
charges / offences / offenders.
➢ Jurisdictional considerations.
➢ Credibility and reliability of witnesses.
➢ A "complete denial" strategy (discredit
prosecution evidence type)
➢ A "confession" strategy (plead guilty and
mitigate sentence)
➢ An "admit and explain" strategy. Defence
that exculpates or reduces culpability.
Even if the accused is guilty, depicting a
story in a better light could lead to a plea
bargain or even being found guilty on a
lesser charge.)

FURTHER READING
1. Modern Trial Advocacy: Analysis and Practice (3rd, 4th and 5th Editions) by Steven Lubet
2. Advocacy Edited by Robert McPeake (15th Edition)
3. http://defensewiki.ibj.org/index.php/Theory_of_the_Case

ALINDA-IKANZA
16/10/2017