Case Analysis #3
Think like your Opponent
Spinning the Seven Elements for your side is all well and good. We will use this to great effect in due course. But spin isn’t a one-way street. No such luck! The adversary system means that you have an adversary. Possibly one who analyzes cases as well or better than you do. Show some respect!
That means you should anticipate how your opposing counsel will spin the case for the other side. Why? Because they will argue the case as persuasively as they can. They will present witnesses who bolster their case or attack yours. They will cross-examine your witnesses to accomplish goals that you should anticipate. By spinning the case for the other side, you can prepare yourself and your witnesses for what will happen. And that empowers you to prepare your arguments, examination outlines and witnesses.
So here’s the third step in the process of case analysis. Consider each element and rephrase it to present the case to the opposing party’s best advantage. In other words, spin it for them. Know your enemy! Be prepared!
The same two ground rules apply. Stick to what’s reasonably provable and keep it relevant.
The opposition’s position will not be the inverse of yours in respect of each element. They have their own strategy to advance. It is common for them to introduce totally different elements. Not the opposite. Different. They are no more dependent on you to set the battleground than you rely on them to do so.
In the Goldilocks case, they may well disagree about who the aggrieved party is and where the case starts. The Bears will likely argue that Goldilocks brought this crisis on through her reckless behaviour or that her parents did by abandoning her in the forest in the first place. They will start their case with this as the first element:
1. The Three Bears lived quietly in their cozy home in the forest.
If Goldilocks plans to argue that she sought sanctuary, the Bears will contend that their home was not up for grabs! We will flesh out the Bears’ case more as we develop their theme.
In later segments, we will discuss what you will do with this set of three versions of the Seven Elements.
Exercise: prepare the Seven Elements spun for Stevenson
Spin the case for your opponent in any file in your own practice or, if in law school, to the losing side in 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.
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