Case Analysis #2
Dealing with Perspectives
The Neutral Seven Elements lays out the spine of the case. The Plaintiff or Applicant will succeed if each of these elements bears out. OK, now what? The only time you will encounter a genuine effort at neutrality is when you read the verdict by the decision-maker. The fact is that the parties have little incentive to advance a neutral position. They have a great deal of incentive to spin the elements to their best advantage.
So here’s the second step in the process of case analysis. Consider each element and rephrase it to present the case to your party’s best advantage. In other words, spin it. Sounds like politics or Madison Avenue, right? Well, there’s a reason for that. Both industries are in the persuasion game, as are trial advocates. So, don’t fight them. Join them.
There are two ground rules, though. The first is that the spin sticks to facts or conclusions that can be either proved or reasonably alleged. This is not the place for hyperbole.
The second is that the spin sticks to relevant facts or conclusions. After all, we are lawyers bound by the Rules of Professional Conduct.
But even so, it is possible – encouraged – that the parties spice up their Seven Elements to best reflect what the parties want to present, if only the evidence could support that result.
Note that the parties may not disagree about several of the elements. In the Goldilocks case, they agree on the gender and age of Goldilocks, the number and size of the bears, and the location and occupancy of the house in the woods. Indeed, there is little that the parties disagree about.
Consider the first element:
1. Goldilocks was a child walking alone in the forest.
This sentence seems innocent enough. How could the plaintiff, assuming it is the little girl, embellish this without stepping outside the known facts? Consider the decision-maker. Does a cute little girl with blonde hair and a dimple appear more vulnerable than an undescribed child? At nine years old, let’s not question whether boys are more or less vulnerable than girls. As an advocate, you want the decision-maker to get to know and like the victim, so some description is warranted. The element may become:
1. A little blonde girl wandered helplessly in the forest, searching for sanctuary.
OK, that may be over the top, but it makes the point. The new version is far more persuasive than the first.
To complete the second step, rephrase all the elements to reflect best the position the party wants to advance.
In later segments, we will discuss what the other party should do and the concept of the ‘Theme’, which informs how the elements should come together for maximal impact.
Exercise: prepare the Seven Elements spun for May Donaghue
Spin the case for any file in your own practice or, if in law school, to a court case you are studying. This technique helps you to appreciate the nuances of your files or that of the litigators who presented the court case in the decision.
If you want more detail and exercises, consider Case Analysis - the Critical Path to Persuasion, available from Irwin Law here.