Case Analysis #6 - Hard Questions and Bad Facts

How to approach the weaknesses of the case

Fairy tales are simple stories where the Good Guys are all good, and the Bad Guys are all bad. Life, however, ain’t like that. In reality, everyone has done something they are not proud of. We call these the ‘bad facts’.

‘Bad facts’ may come in the form of attributes (like bias), events (past conduct), and extraneous things (such as a subject being outside the knowledge or experience of the witness). We label these as ‘bad’ because they impair or put at risk our ability to use the witness to support our case or attack the case of our opponent. We call the initial effort to deal with them the ‘hard questions.’ 

‘Hard questions’ is a term that sounds like an interview technique. Why not put this technique into that section of the course? Indeed, why is this part of case analysis at all? You can’t figure out your party’s weaknesses until you perform some case analysis. That means you have gathered enough information to determine what your party needs to prove to succeed. By all means, ask the ‘hard question’ during your interviews. You should add the answers to your hopper of information to analyze. Thus, ‘hard questions’ that yield ‘bad facts’ are just questions. So, we can drop the quotation marks.

The trick for case analysts is to identify and deal with bad facts. Suppose the opposing party or witness screwed up. Great. You can exploit it. The flaw may become the focus of your cross-examination. But what if it is your client, witness, or expert who will admit to something that will hurt your case? You should factor that into your strategy. We will deal with the mechanics when we consider Scenes and Direct Examinations. For now, let’s focus on the role that hard questions and bad facts play in your case analysis.

There are three basic strategies to deal with bad facts, depending on how you can manipulate them.

1.     Perhaps the bad fact is actually a good one. It supports the theory of your case. Example: If your expert has just graduated from a professional school, the lack of experience (bad fact) may be offset by having received the very best and latest in training (good fact).

2.     Perhaps the bad fact is neither positive nor negative. In that case, it neither helps nor hurts. Example: If your eyewitness could not see the event (bad fact), perhaps you only need to establish that your witness heard it in order to prove your point (neutralizes the bad fact), which your witness can and will do.

3.     Perhaps you can’t avoid the bad fact, but it isn’t so bad when viewed in the right light. Example: If your witness was far from the scene of the accident (bad fact), their witness wasn’t much closer (yours isn’t so bad, after all).

How can you identify the bad facts so that you can ask the hard questions and deal with them? Here’s where running the case analysis from both perspectives really helps you. Your spin will highlight what you must, should, or hope to establish to succeed. When you consider how you will do so, you can identify the weaknesses you should overcome.

Then repeat the process by examining their case analysis. If they can prove all that, you can lose the case, right? Each of the essential facts of their case may well be a bad fact that you should neutralize using one of the three strategies.

Exercise: examine all of the elements you have drafted as spun for both sides. Consider the weaknesses of the witnesses in the case summary or named in the case study. How could you deal with each of these using the three strategic choices?

Look for the weaknesses of the main witnesses for both sides in any file in your own practice or, if in law school, to both sides in a court case you are studying.

If you want more detail and exercises, consider Case Analysis - the Critical Path to Persuasion, available from Irwin Law here.