In their legal treatise Analysis of Evidence, professors Terence Anderson, David Schum, and William Twining reveal a Seven step method for practitioners to engage in when litigating a case. The goal: developing a cogent system “under which the [evidence] can be organized and marshaled for presentation in the appropriate context, be it counseling, negotiation, or trial.”
Their system aspires to organize all your evidence so that the logical relationships among propositions can be ascertained and marshaled to support or negate facts of consequence—i.e., material facts crucial to proving, or disproving, a case. The tool they recommend for accomplishing this goal is the Outline—step 6 of the process.
The outline consists of the ultimate proposition that a Plaintiff must prove in the case—e.g., whether John Doe was negligent in injuring Jane Roe, the simple propositions that constitute the ultimate proposition—e.g., whether John Doe had a duty to Jane Roe—and then asserts them as the major headings in the outline. These major headings are then divided and subdivided into necessary intermediate propositions up until the point where the analysts reaches the evidential propositions—i.e., “the propositions that express what the decision-maker will hear or see, if and when the case is tried.” The outline, then, is essentially the elements and sub-elements of a rule of law, with all the evidential propositions identified out so that you can clearly map out the best support for each sub-element when litigating.
Before even engaging in Step 1 of their method, the authors instruct the lawyer to ask three preliminary questions: (1) What is the ultimate proposition that must be proved; (2) What is the data that is available; and (3) What are the plausible and defensible connections between these data and the ultimate propositions. The Seven steps are simply the heuristic device used to answer these questions.
But why engage in a structured, albeit flexible, process when litigating a legal dispute? Why not go off of experience, using an ad hoc (for this) structure, intuitively completing whichever action the stage in the litigation requires? Because, the “quality of an analysis and the resulting products are enhanced if those engaged in the task observe a known and systematic protocol . . . . [A] systematic set of procedures regularly employed.” This commitment to structure harkens back to one of my favorite quotes: “What gets measured, gets managed,” and I am apt to agree with the authors here as a regularly implemented, systematic procedure would certainly provide me with the confidence and ability to more effectively deal with a daunting sets of facts and evidence when litigating a case. Let’s get into Step 1.
Step 1: Clarify the standpoint
While litigating, clarifying the standpoint consists of a few considerations, but none more important than coming up with an “advocacy objective,” which is to be achieved using the materials available from the outset. You can understand your objective by asking yourself why you’re engaging in this analytical process: Is it to prepare for discovery and recommend a course of conduct? Maybe to depose the Plaintiff? Or possibly move for a dispositive motion? At its essence, you must understand the goal you are trying to accomplish given the evidence acquired and formulate that goal into a clear standpoint.
Next, you must engage in a type of role-playing. You do this by considering not only your role as advocate, but that of your opponent and the trier of fact. Failing to engage in this type dynamic thinking might lead to a later realization that the advocacy objective specified cannot be achieved with the data available. Considering these macro-level questions early on, avoids this possibility from arising throughout the various stages of the litigation.
Step 2: Formulate carefully and precisely the potential ultimate propositions, material facts, or facts of consequence.
These are the ultimate, or material, facts that the lawyer must prove in order to prevail. The lawyer must think about these material facts as the minor premise in a logical syllogism—for example: All men are mortal (major premise), Socrates is a man (minor premise), therefore Socrates is mortal (conclusion).
The rule of law will constitute the major premise and the minor premise will take the form of the ultimate proposition invoking that rule of law. When these propositions are “found proved to the required degree, [they] compel or support the conclusion that the party with the burden must prevail.”
This step underscores the importance of thinking syllogistically and utilizing formal logic when litigating a case. As the philosopher F.C.S. Schiller said: “to put an argument in syllogistic form is to strip it bare for logical inspection. We can then see where its weak points must lie, if it has any.”
While formal logic is complicated and unfamiliar to most lawyers and law students, it can have great benefits if you seek to understand it. Judge Ruggero Aldisert, in his book Logic For Lawyers, explains that understanding the basic methods of logic and how they work, such as deductive reasoning (or syllogism) and inductive reasoning, “can improve the quality of reasoning” and make you a more effective legal analyst. The authors seem to recognize this point as they instruct you to create a syllogism of your case at the outset.
Using the OJ Simpson murder case as an example, the authors provide a model ultimate proposition:
Nicole Simpson is dead; and Nicole Simpson died as the result of an unlawful act; and it was OJ Simpson who committed the act that caused Nicole Simpson’s death; and the person who committed the acts that caused Nicole Simpson’s death acted with malice aforethought.
While this step is simple, it is vital. Setting out this ultimate proposition at the outset allows you to understand exactly what needs to be proved, and without it, “there is no touchstone off relevance; if it is incorrectly or loosely formulated, the ensuring analysis is correspondingly vulnerable.” Take great care in “syllogizing” your case at the outset to avoid such vulnerability.
Step 3: Formulate the potential penultimate propositions
This step consists of breaking apart the larger ultimate proposition into what the authors call penultimate propositions. Again, using the OJ case as an example, we see that the penultimate propositions will be: (1) Nicole Simpson is dead; (2) Nicole Simpson died as a result of an unlawful act; (3) It was OJ Simpson who committed the act that caused Nicole Simpson’s death; and (4) The person who committed the acts that caused Nicole Simpson’s death acted with malice aforethought. Note, you may have to reduce, or “partition,” these proposition further if the cause of action or legal rule you’re litigating requires elements and sub-elements.
Step 4: Formulate the provisional theories of the case
The theory of the case is a logically formulated statement supporting one or more conclusions about the case in its entirety. Upon developing this theory, it becomes possible to use the primary penultimate proposition in issue as a “magnet” to attract the relevant evidential propositions—i.e., the propositions used to explain how certain evidence fits into your factual account.
Thus, if your theory in an employment retaliation case revolves around proving a legitimate, non-discriminatory motive, you would use that penultimate proposition—or element—as a magnet to draw in evidence that Plaintiff’s work performance was slipshod and unsatisfactory, and that he was terminated for good reason. Or, as in the OJ case, if you needed to prove the identity element (that it was OJ who committed the crime, as opposed to proving malice aforethought, another element in murder), you would look for evidence that OJ had the opportunity to commit the act—evidential propositions concerning the time of Nicole Simpson’s death and the time OJ was observed by witnesses.
This theory must remain provisional and act as a guide for your analysis at an early stage. And it is crucial that you consider the plausible theories that your opponent may use. This will avoid the inability to explain away unfavorable facts adequately in the future, as you have already anticipated them after considering your opponent’s likely theory.
Step 5: Recording the available data
To be successful while litigating, there must be a device that can be employed to record the evidence. The one the authors recommend, and which I’ve had experience with, is the case chronology. This chronology is a temporally ordered document with all the relevant information from the case contained inside. At the outset, you might solely base it on documents received from the client, but as the case develops, it will be comprised of information acquired from witness interviews, interrogatories, depositions, et cetera.
Moreover, the chronology services two functions as an analytical tool: (1) It helps lawyers notice where temporal gaps exists in your factual account that need to be explained; and (2) It helps the lawyer see narratives, or story possibilities, that might explain the facts in their entirety. Eventually, “a fully developed chronology may [even] provide the framework for presenting the theory of the case as a story in the opening statement.”
Step 6: Preparing the products
Using your chronology (the tool to organize facts in a temporal fashion so that you can identify gaps in your case) and a narrative (the tool to marshal facts together in order to construct a logical story supported by the evidence), you generate a “product” in the form of an outline.
This will primarily consist of transferring the propositions developed in your chronology into your outline so that your theory of the case and syllogism can be conveyed more effectively. This outline, in essence, organizes the evidence and arguments to create the perception of coherence in your case. And with the propositions and ideas obtained from your chronology and narrative neatly set out, it becomes easy to outline the evidence that supports those propositions. Here’s an example from the book that focuses on the identity element in the OJ case:
As you can tell, this type of evidential outline is very detailed and can indeed be expanded to account for the entire spectrum of data. And while formulaic, it makes it easier to not only logically order your factual account, but also explain away your opposing side’s inferences.
Step 7: Refining and completing the analysis
Armed with this product in the form of an outline—constructed from your chronology— you are now able to develop a “logically sound analysis that, in light of the analyst’s specific objectives, organizes a mass of evidence and identifies the inferences necessary to relate all significant relevant data to the ultimate proposition in issue.” The outline permits, and success requires, you to continue to discover any gaps in reasoning, test your theory of the case, and ascertain themes; revisions will be inevitable. What this well-constructed outline eventually provides you is the ability to evaluate the case-as-a-whole throughout the litigation, uncovering all the details and individual characteristics of the event in question.
A logical, systematic process undoubtedly leads to logical, systematic reasoning. This 7 step formula provides the type of process-oriented method that will allow you to understand your case in the broadest, most comprehensive sense. Ideally, your reasoning, as a product of this process, will help create a factual account that is coherent, causally specific, and evidentially supported. Your account, then, will constitute the “fittest” factual telling of the two competing stories, i.e., the inference to the best explanation, and will become exceedingly persuasive to a trier of fact.
Give this method a shot.