Case Analysis
| Author | Peter Lyons |
| Pages | 47-60 |
If advocacy is about persuasion, then it must also be about winning. There are those who think this is wrong; that the advocate’s only duty is to present the case as well as possible. But what is the point unless you change the mind of the listener, or at least get him to agree with you? A verdict of not guilty; an increase in damages; the development of the law; a reduced sentence – these are all wins.
To win, you have to analyse your case and develop a case theory: the best interpretation of the available facts as to why you should win the case.
A case without a case theory is like a car without a steering wheel.
In this chapter, I use the case study at the end of the book to demonstrate some techniques.
1 The facts
Let’s start with the facts. The word ‘fact’ is not used in its ordinary, everyday sense. If I said to my mother that it is a fact that Christmas Day falls on 25 December each year, she would agree. She would also wonder why she spent so much money on my education. But to mum and all the other normal people, a ‘fact’ is something that is true.
To lawyers, a ‘fact’ is a piece of the jigsaw puzzle that is our client’s case. It’s not necessarily true because you have to prove it.
When you walk into your colleague’s office and ask ‘What are the facts of your case?’, you are not asking ‘Is your case true?’
For the purposes of case analysis, a ‘fact’ is a term of art, in effect an allegation. ‘The sculpture is Victorian and not Assyrian’ is a fact. You will prove it by calling your expert Mr Worthington. It is a fact of the defendant’s case that ‘The sculpture is Assyrian’. The defendant will prove that by calling Professor Fournier.
This often confuses people who say, ‘How can it be a fact if it contradicts another fact?’ Well the answer is that it is a fact or allegation on each side’s case and has to be proved.
In a civil case there are legal obstacles to overcome; in effect, the links of a cause of action. So in negligence, the legal links are:
48 Advocacy: A Practical Guide
1 Duty of care.
2 Breach of duty.
3 Causation.
4 Damage.
Lord Diplock said that a cause of action is simply a factual situation, the existence of which entitles one person to obtain from the court a remedy from another person.
Our job is to look for those facts in the mass of information in front of us. Sometimes the documents in our case and statements of the witnesses are so voluminous and wordy that looking for Lord Diplock’s facts is like looking for a needle in a haystack.
The facts we are searching for are what we call the material facts. I often ask my students whether they know the difference between a relevant fact and a material fact. They are often not sure.
A relevant fact is one which relates to the case. A material fact is a relevant fact which is also necessary to the case. In a negligent driving case where the claimant is not injured, there is no material fact relating to damage. There is a hole in the case and it may be struck out.
When we produce a list of the material facts and place them in the right order we have the first draft of a statement of case or points of claim.
2 Parties
Are you suing the right person? Is that person an individual citizen or a company? If the company is part of a large corporate group, have you chosen the right one? Has the wrong person been joined as a party? This is a crucial exercise to undertake in the analysis of the case. A mistake will be very costly.
3 Evidence
There is a third category which we must distinguish from the material facts, which we call the evidence.
The evidence is the means by which you prove the facts. So, if it is a fact that ‘Jim was driving a car at a speed exceeding 30 miles per hour namely
50 miles per hour’, you must ask ‘How do I prove that fact?’ In other words, what is the evidence of that fact?
There may be many sources of evidence for that fact or ways to prove it:
1 A policeman with a radar gun.
2 A speed camera.
3 A passenger watching the speedometer (Jim will never offer her a lift again).
4 Jim saying to the policeman ‘Officer, I was only doing 60’ (Jim is not very bright).
5 A police car travelling at the same speed for a fixed distance behind Jim’s car.
There are many ways of proving the same fact. You just have to test each one for relevance, admissibility and weight.
Ask yourself the following questions:
1 Is the evidence of the policeman with the radar gun relevant?
Yes.
2 Is it admissible? Yes, it has probably been made admissible by regulation or statute.
3 What sort of weight does it carry? Weight means cogency or believability. On a scale of 0–5? Probably 5. What if the radar gun has proved to be inaccurate once or twice in the past month? Probably 3 or 2.
To apply this to our case study:
1 ‘The sculpture is Victorian and not Assyrian’ is the material fact (although it is an opinion).
2 ‘Mr Worthington, the expert will prove it’ is the evidence:
a Is it relevant? Yes.
b Is it admissible? Yes, if Worthington’s background, education and experience qualify him to give an expert opinion; and
c What weight does it carry? This depends on the factors in point b and the method of his examination.
Case analysis therefore requires us to separate the facts from the evidence.
50 Advocacy: A Practical Guide
4 Conclusions
We are also required to separate the facts from conclusions or, better still, to break down our conclusions into facts.
Conclusions are inimical to effective advocacy. The only person who should be drawing conclusions is the decision-maker.
Let me show you what I am getting at.
There are two weather presenters on TV. The first one says, ‘The weather will be bad today and much worse tomorrow.’
The second weather presenter says, ‘Today it will be rain from 3pm to 5pm and then it will turn to sleet which will last till 9pm. Tomorrow, there will be a blizzard from 6am until 10am.’
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