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In law school students are taught to develop a case theory. The theory is supposed to be a reason you can win the case in an easy to understand explanation to a jury. Although I agree that this is essential to any good trial strategy; I don’t like the term “case theory.” I prefer to think of it as a case narrative. A “theory” sounds like it is made up, but the attorney needs to believe in what they are arguing to a judge or jury as the facts of the case to win. A lawyer who does not genuinely believe in their case is not ready for trial. A case narrative tells the jury the facts in a way that is easy to understand why your client wins under the law.
How do you develop a narrative? In school you are taught to develop a theme. Something catchy like if the “glove don’t fit you must acquit.” But the starting place to developing a case narrative is the law. The lawyer needs to know what he or she needs to prove to win or what defenses are available under the law. I start with the Uniform Jury Instructions because that is the likely information the jury will hear about the law. Then the lawyer needs to learn the facts the of the case. The lawyer needs to investigate the facts in an objective manner because knowing how certain facts could be interpreted by the opposing counsel is important to developing a narrative. This includes asking difficult questions to the client, witnesses and doctors. After evaluating the facts, the lawyer will then focus on the facts that support the narrative (or theme) that is going to be used at trial, mediation or for settlement. Jurors believe the truth is simple and if it’s simple then the lawyer shouldn’t be wasting time to present evidence that doesn’t matter.
The narrative is easier to understand if it appears to flow naturally with the law that the jury will be given at the end of the case. The narrative needs to be true and powerful when conveyed to the jury. A good narrative will illustrate the facts by providing genuine details that are memorable to the listener. Taking small steps to highlight an event or part of an event or the aftermath of the event go along way. The lawyer’s role is to help the witnesses explain the details and then match those details to the law at closing argument. Developing this narrative or strategy takes a lot of time before trial starts, but the jury will think the narrative just came out for the jury to hear.