Theory of the Case

Question 1

What are the two biggest overarching questions you should ask in developing your theory?

Answer 1

1. What elements do you need to prove or disprove?
2. What types of facts are you working with?

Question 2

Break down the four types of facts.

Answer 2

1. Facts beyond change
2. Facts beyond disbelief
3. Latent facts
4. Omissions

Question 3

Give 6 examples of facts beyond change.

Answer 3

1. Physical evidence
2. Forensic testing
3. Audio
4. Video
5. Photo
6. Documents

Question 4

Give 5 examples of facts beyond disbelief.

Answer 4

1. Admissions
2. Statements against interest
3. Multiple witness testimony
4. Corroborated testimony
5. Neutral eyewitness testimony

Question 5

What are latent facts? Where will (and won’t) you find them?

Answer 5

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.

Question 6

What are two examples of areas in which you can find omissions?

Answer 6

1. What DIDN’T happen?
2. What did a witness NOT say?

Question 7

What are three ways you can deal with bad facts?

Answer 7

1. Try to nudge facts beyond change/disbelief into different categories
2. Discredit (neutralize)
3. Block

Question 8

List 4 ways you can block evidence.

Answer 8

1. Objections
2. Suppression
3. Daubert hearings
4. Motions in limine*

Question 9

What are 4 strategies you can use if you can’t shift, discredit, or block bad facts?

Answer 9

1. Ignore
2. Openly admit (gain credibility)
3. Incorporate into theory (make opp pay sponsorship cost)
4. Wait and see

Question 10

While anyone can use Rules of the Road, who were they written for?

Answer 10

Plaintiff-side lawyers.

Question 11

What are the three weapons of corporate defense?

Answer 11

1. Complexity
2. Confusion
3. Ambiguity

Question 12

What are Rules of the Road?

Answer 12

Common-sense or moral imperative rules that are impossible to credibly dispute.

Question 13

How do you apply the rules?

Answer 13

Loop the rules at the defendant. “Were you [keeping with the rule] when you [violated the rule]?”

Question 14

Give a one-sentence summary of inoculation.

Answer 14

“Prick the boil;” get ahead of your opponent by introducing adverse information.

Question 15

When is the best time to start inoculating?

Answer 15

Jury selection.

Question 16

What are the three steps of inoculation?

Answer 16

1. Warn
2. Preempt
3. Defend

Question 17

How do you warn?

Answer 17

Early in trial, you tell the audience to beware an opponent’s attempt to introduce bad facts or impeach.

Question 18

Why do you warn?

Answer 18

You want them to start developing their own counter-arguments and defenses; their OWN reasons.

Question 19

How do you preempt?

Answer 19

Provide a limited and milder version of your opponent’s bad facts.

Question 20

You should use ______ messaging when preempting.

Answer 20

Two-sided.

Question 21

What are the three benefits of two-sided messaging?

Answer 21

• 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

Question 22

How do you defend?

Answer 22

• 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

Question 23

When do you use inoculation strategy?

Answer 23

When introduction of a fact is inevitable and the fact may be irrefutable.

Question 24

What are the two biggest benefits of inoculation strategy?

Answer 24

• demonstrates vulnerability and integrity which increase ethos
• eliminates having to advance weak arguments

Question 25

Give a one-sentence summary of sponsorship theory.

Answer 25

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.

Question 26

What are 5 components of sponsorship theory?

Answer 26

1. Source attribution
2. Sponsor’s credibility
3. Best possible case
4. Sponsoring value
5. Concessions

Question 27

What is source attribution?

Answer 27

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.

Question 28

How does the sponsor’s credibility factor in?

Answer 28

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.

Question 29

What is the “best possible case?”

Answer 29

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.

Question 30

What are the two sides of sponsoring value?

Answer 30

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.

Question 31

What are the three biggest reasons to not concede?

Answer 31

1. Avoid bearing sponsorship costs
2. Avoid attesting to materiality
3. Avoid the jury giving outsized persuasive value against your theory of the case

Question 32

What five factors elevate factually sufficient to factually persuasive?

Answer 32

1. Human values and needs
2. Human story
3. Believable/understandable story
4. Quantity of evidence
5. Quality of evidence

Question 33

Describe the difference between theory and theme.

Answer 33

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.