Saturday, August 20, 2011

1. Saturday, August 20, 2011 LSU Law Trial Advocacy Board Workshop

2. Case Analysis and Preparation Where do I begin?

3. Seven Steps to Superior Case Analysis and Preparation 1. Organize the case file • Use chronologies, timelines, and topic outlines 2. Identify and Analyze Legal Issues • Substantive: List the legal elements for the claims and defenses • Take a look at jury instructions and make sure you understand • Perform independent legal research to see if there are more complete explanations • Procedural: You should identify admissibility issues of key pieces of evidence

4. Seven Steps to Superior Case Analysis and Preparation • Identify and analyze factual issues • Separate facts into the good, the bad, and the downright ugly • Identify those facts that are crucial to the case • Connect the facts to the law • Develop a theme

5. Seven Steps to Superior Case Analysis and Preparation • Plan your presentation in reverse: • Think about what outcome you want and work backwards • What will you want to get out in the end and how will you get it out? • Verify the evidence • Ensure that you have the witnesses to admit sufficient evidence to support your legal theory, factual theory, and moral theme • Use a Check List

6. Case Theory • The theory is the application of the relevant law to the specific facts of your case. • It forms the basis for the legal reasons why you should win. • “Why does the law says I should win?” • “Why are we in court?” • What you want to prove really happened and how

7. Case Theory • Legal theory: What is the case legally about? • Civil or Criminal? • Burden of Proof • Negligence or Strict Liability? • 1st Degree Murder or 2nd Degree Murder? • Look at the element of offenses and potential defenses will quickly identify possible legal theories. • Factual theory: Simply your version of the story. • What happened, how, and why?

8. What is a theme? • Message of trial story that allows the jury to react Viscerally • Make jurors WANT to argue for you during deliberations • Shows why your side should win • Moral Underpinning: • Right v. Wrong; • Good vs. Bad • NOT: the theory of the case or an outline of the story

9. Themes give structure to the story • Complicated facts are brought out through trial • Jurors forget details but retain impressions • Themes help trigger favorable emotional responses • Connects facts to a moral narrative • Makes your case relatable

10. Examples of themes Examples: • Trust, greed, responsibility, control, carelessness, selfishness, playing by the rules, cutting corners, profit over safety, David and Goliath, choices, “easy one to blame, but not the right one to blame,”“bad things happen to good people,”“accidents happen,” accountability, when you play with fire you get burned

11. Use of “catchy phrase”or “one-liner”? Examples of corny one-liners • “If it doesn’t fit, you must acquit” • “Where’s the beef” • “The line between love and hate is thin, and the defendant crossed that line” • “This is a case where a picture tells a thousand words.” • “When you point the finger at someone else, there are three fingers pointing back at you.”

12. Rule of Three The theory is that when information is organized in triplets people are more likely to accept and internalize the message contained within those three pronged packages • “Greed, money, and lies…that is what this case is about.” • Use Alliteration…”Death, denial, deception”

13. Developing a Case Theme • Easy to remember • Favorable so juror will want to argue for you • Consistent and makes senses to jury who wants to be fair and just • Think about “This is a case about…” but just lose the “This is case about…”

14. How do you get a “theme”? • Legal profession beats the creativity out of you; let right brain have its freedom • Brainstorm…use non-lawyers or other students who are not on the case (boyfriends, girlfriends, non law school friends, your mom, etc.) • Look at language of jury instructions…don’t be hyper-technical • Picasso said “Good artists copy, Great artists steal”

15. Examples of places to “steal” • Billboards and advertisements • Newspaper Headlines • Famous quotes • Movie lines • Religious texts • Your Opponent!!!

16. When do you communicate the theme? ALWAYS Opening • Introduce rule that you want jury to adopt and tell your story…theme is weaved throughout all of that. Witnesses • Get themes reiterated by your witnesses, especially expert • Use words/images to reiterate themes: ex. Rules, control, knowledge, safety, choices, responsibility

17. When do you communicate the theme? Cross-Examination • Reversal of opponent’s theme with defense witness • Think about testimony of witness and consider how it runs counter to common experience Closing • Make sure you and your partner have the same Theme and Theory!!!

18. Other Things to Think About • Burden of Proof / Persuasion • Facts: Direct or Circumstantial • Credibility of Witnesses • Which Witness is best to get information from? • Both in terms for who the jury will believe more and who will it be easier to illicit the info from.