Scenes Technique #5

Deal with the bad facts

Careful professionals consider what could go wrong. Consider an engineer designing a bridge. What could go wrong? Well, that doesn’t take much imagination. Litigators don’t usually have people’s lives in their hands as they design an examination outline. But the admonition still applies. Because whenever a lawyer speaks, something could go wrong. And that something might sink your case.

That’s why we spend so much effort considering the hard questions and bad facts. Because they don’t disappear if we choose to ignore them. Our opponents will seize every opportunity to exploit those bad facts in their favour. Not yours.

So, the last step in considering the scenes that comprise an element is to identify the bad facts and create a strategy to deal with them. That process requires you to imagine how your opponent will exploit the bad facts to damage your case or support their own.

There may not be a bad fact lurking in any scene, and there may be more than one. As we discussed back in Case Analysis #5, there are three strategies to deal with a bad fact:

1.     Turn it around to work in your favour.

2.     Neutralize it.

3.     Minimize its impact.

Once you identify the bad fact and choose your strategy, explain how you propose to deal with it. With what evidence? If a witness, what will you ask the witness? What explanation or evidence will that witness provide? Often, this requires preparation with the witness. And preparation of the witness requires preparation on your part. What do you need to succeed?

When we discuss examination outlines later, we will combine all these steps, from identifying the scene to fine-tuning it to planning for the hard questions. For now, we will focus only on the hard question. 

Hopefully, you are not tired of Goldilocks and her story. We will trot her case out again to search for bad facts and see what we can do about them. Again, we act for Goldilocks. Here are the scenes from Scenes Techniques #1. Let’s see what could go wrong.

1.     9-year-old Goldilocks does, indeed, have two parents.

a.      The Three Bears will point right at the parents who let their child roam in the forest to get into who knows what trouble. Later in this sequence of scenes, the Bears will use the bad fact: the parents lost track of Goldilocks, allowing her to wander alone in the woods. Are they bad parents? Your strategy is to turn this into a positive – set them up as good parents. You will introduce them as mature, sober, good and conscientious parents, pillars in their community. Everyone in the community will vouch for them.

2.     She lives on a farm on the outskirts of the forest.

a.      The Three Bears will point out that wildlife had possession of the woods long before humans came, which is the bad fact. Fortunately, the judge and jury are likely humans, so you have bias on your side. To avoid the possibility that animal lovers will judge your case, show how long the farm has been there and how productive a community component it has been.

3.     Her parents instructed her never to leave the yard without one of them by her side.

a.      The bad fact will be that Goldilocks did wander off. It can’t be helped. To minimize the effect, show that this is the only time it ever happened and how obedient she usually is. Accidents happen, right? Then play up the supportive role of the community to look after all children and, if possible, baby bears, too.

4.     One day, she was playing in the yard when a songbird drew her into the forest.

a.      She wandered off, which is still the bad fact. Minimize it with the ‘kids will be kids’ defence. Yes, she wandered, but wandering off shouldn’t be a capital offence, should it? Maybe a day without desserts, but not PTSD! 

5.     Goldilocks followed the bird ever deeper into the forest.

a.      The possible bad fact here is that wandering for 5 minutes is one thing, but wandering for an hour or more without noticing suggests a total failure of training. Counter this by proving the opposite, that Goldilocks received the best training (only it failed just this once).

6.     After a while, she lost touch with the bird and noticed she was quite lost.

a.      This scene is a continuation of the bad fact. Counter it by showing that Goldilocks did the right thing by reacting correctly.

7.     She panicked and tried to retrace her steps, but to no avail.

a.      The Bears will repeat the bad training mantra (bad training means bad parents) and you will rely on the good training and overreaction by the Bears as the proximate cause of what happened.

The above sequence demonstrates how narrow the issues will be and what your resources should focus on. This narrowing is precisely the strength of this technique.

Exercise: examine several of the scenes you created in the previous exercises. Where are the bad facts? How would you deal with them using the three possible strategies?

No handbook is written about this technique, although one is under consideration.