Theory of the Case Flashcards
What are the two biggest overarching questions you should ask in developing your theory?
- What elements do you need to prove or disprove?
- What types of facts are you working with?
Break down the four types of facts.
- Facts beyond change
- Facts beyond disbelief
- Latent facts
- Omissions
Give 6 examples of facts beyond change.
- Physical evidence
- Forensic testing
- Audio
- Video
- Photo
- Documents
Give 5 examples of facts beyond disbelief.
- Admissions
- Statements against interest
- Multiple witness testimony
- Corroborated testimony
- Neutral eyewitness testimony
What are latent facts? Where will (and won’t) you find them?
They’re facts assumed to be true based on personal experience. We should look to collective agreements about how the world works. They won’t be found in depositions or statements.
What are two examples of areas in which you can find omissions?
- What DIDN’T happen?
- What did a witness NOT say?
What are three ways you can deal with bad facts?
- Try to nudge facts beyond change/disbelief into different categories
- Discredit (neutralize)
- Block
List 4 ways you can block evidence.
- Objections
- Suppression
- Daubert hearings
- Motions in limine*
What are 4 strategies you can use if you can’t shift, discredit, or block bad facts?
- Ignore
- Openly admit (gain credibility)
- Incorporate into theory (make opp pay sponsorship cost)
- Wait and see
While anyone can use Rules of the Road, who were they written for?
Plaintiff-side lawyers.
What are the three weapons of corporate defense?
- Complexity
- Confusion
- Ambiguity
What are Rules of the Road?
Common-sense or moral imperative rules that are impossible to credibly dispute.
How do you apply the rules?
Loop the rules at the defendant. “Were you [keeping with the rule] when you [violated the rule]?”
Give a one-sentence summary of inoculation.
“Prick the boil;” get ahead of your opponent by introducing adverse information.
When is the best time to start inoculating?
Jury selection.
What are the three steps of inoculation?
- Warn
- Preempt
- Defend
How do you warn?
Early in trial, you tell the audience to beware an opponent’s attempt to introduce bad facts or impeach.
Why do you warn?
You want them to start developing their own counter-arguments and defenses; their OWN reasons.
How do you preempt?
Provide a limited and milder version of your opponent’s bad facts.
You should use ______ messaging when preempting.
Two-sided.
What are the three benefits of two-sided messaging?
- better persuasive value because it won’t be discarded as pure advocacy
- better at changing negative attitudes
- better at avoiding over-protected beliefs that are not subject to challenge
How do you defend?
- create a mindset for the audience to resist the attack
- incorporate candid explanations with counter-arguments
- allow the audience to develop a stronger resistance to further attacks
When do you use inoculation strategy?
When introduction of a fact is inevitable and the fact may be irrefutable.
What are the two biggest benefits of inoculation strategy?
- demonstrates vulnerability and integrity which increase ethos
- eliminates having to advance weak arguments
Give a one-sentence summary of sponsorship theory.
You can pay serious costs for introducing bad facts and often get reduced returns on introducing good facts - so avoid conceding bad facts whenever possible.
What are 5 components of sponsorship theory?
- Source attribution
- Sponsor’s credibility
- Best possible case
- Sponsoring value
- Concessions
What is source attribution?
Source attribution is the idea that the persuasive impact of an item of evidence is decisively influenced by the identity of the party who is offering it.
How does the sponsor’s credibility factor in?
The attorney sponsoring the evidence endorses it as important, reliable, and credible. The attorney’s personal credibility is on the line with every question to a witness, every objection, and every exhibit.
What is the “best possible case?”
The jury assumes that the attorney is bringing the best possible evidence, with the lowest effort, to win. In short, the jury assumes the case cannot be better than the party’s own lawyer asserts. When you concede, you lower your ceiling.
What are the two sides of sponsoring value?
Your evidence that supports your theory will be discounted, because you are biased. Evidence that you admit hurts your theory will be given full credibility.
What are the three biggest reasons to not concede?
- Avoid bearing sponsorship costs
- Avoid attesting to materiality
- Avoid the jury giving outsized persuasive value against your theory of the case
What five factors elevate factually sufficient to factually persuasive?
- Human values and needs
- Human story
- Believable/understandable story
- Quantity of evidence
- Quality of evidence
Describe the difference between theory and theme.
A theory is a few sentences on why I win and can be broken down into the legal theory and factual theory. It must involve values. The key difference between theory and theme is that the theory will have more real estate for fact comparison.
A theme is a soundbite. A short sentence, which is digestible, memorable, still expresses values, and answers the “why I win” question.
