In this post, a take to describing a litigation tool, the case chronology, and how this device helps construct stories that present your facts in the most persuasive way to a judge or jury.
The Case Chronology
A case chronology is a tool in litigation that helps you marshal and organize evidence to support your position. Whether it consists of a timeline composed in Microsoft Word or on a more sophisticated platform, this device organizes all the data you have gathered in a sequential fashion. A hallmark of the chronology is that it is flexible and adaptable, allowing you to add and incorporate new information as you discover it. The result is a complete repository of all the pertinent details and facts in the case, which spares you from rifling through documents frantically when information must be recalled at a later time.
The data within your chronology can come from documents or other tangible evidence as well as witness or party testimony. The detail of your entries will vary, depending on the type of case and preference of you supervisor—the chronology in a case that involves many detailed, lengthy documents will be larger and more in depth than a case that depends on the eyewitness testimony of a few witnesses in which the events in litigation occurred over a slim five minute span, such as in an automobile accident case.
As far as content included in your chronology entries, this will also vary and depend on the type of evidence the entry is about—witness testimony, real evidence, et cetera. But a good standard to keep in mind is how this document is relevant—i.e., how it will tend to support or undermine the probability of some proposition. Including the facts that have a bearing on the item’s relevance will allow you to remember why that evidence is important when you look back on it later.
The chronology also serves many important analytical functions. Its most obvious is that it easily arranges events temporally. This is important because it is expected that at any trial, a fact-finder must make decisions about events and acts that took place in time. Chronologies also allow lawyers to see where gaps exist in time periods so that any voids can be patched up or explained. And if there are any ambiguities or inconsistencies in the evidence, the chronology will reveal those too. Lastly, the chronology helps the lawyer identify narratives and story possibilities that can explain the events at the heart of the litigation—more on this later.
For instance, constructing your case chronology might widen your eyes to a certain period of time where there was a conspicuously long period of inaction. This might be especially important in a case where temporal proximity is useful in satisfying one of the elements of the claim. Imagine an employment retaliation or discrimination case where the plaintiff must show there was a causal link between the protected activity (whistle-blowing) or discrimination and the adverse employment action (termination or other demotion). This realization would prod the litigator to investigate this gap, as a protracted absence of activity can support a defendant’s position that there was no causation between the protected activity and termination. (Carlton v, Mystic Transportation, Inc. (3d Cir. 2000) is a good example of this, where the court said: “Case law teaches that where the termination occurs within a relatively short time after the hiring there is a strong inference that discrimination was not a motivating factor in the employment decision.”). The case chronology at a fundamental level allows you to understand where to focus your investigative efforts, and this is especially useful in cases where timing is so important.
However, while case chronologies are “heuristically valuable in their catalyzing questions about a case, they also have limitations,” says Peter Tillers and David Schum in their article “A Theory of Preliminary Fact Investigation” (published in the University of California at Davis Law Review)(link). One shortcoming is that chronologies tend to find themselves organized in a cluttered fashion. This is due to the fact that the events, as presented in the chronology, seemingly have no relationship to each other. All the entries appear as disorganized, isolated pieces of evidence lacking in interconnectivity. Professor C. Fred Alford, of the University of Maryland, imaginatively describes events in a chronology as “fragments ordered into line, like a cold and ragged queue of strangers who don’t even share the time of day.” The case chronologies absence of linkage leaves it as a rather one-dimensional tool that may even impede comprehension and prevent you from presenting your facts in the most persuasive way. The links needs to be made explicit, and the chronology needs helps from additional devices to accomplish this.
The device Tillers and Schum recommend as a “cure” to the unlinked chronology is a story or scenario—which they use interchangeably for these purposes. According to William Twining and Terence Anderson, authors of the Analysis of Evidence treatise, “[a] story is a narrative account of a succession of events, ordinarily presented in the chronology order in which they occurred, presented as a meaningful whole.” So while a chronology merely creates a sequence of events in a cold and impersonal fashion, a story helps makes these connections between events explicit, adding intelligibility and coherence.
This much desired intelligibility and coherence eventuates because, as the research has found, “stories are both a common natural information processing technique and an effective technique for storing and recalling large amounts of information.” In other words, our cognition functions in such a way as to prefer facts when they are told in an orderly, less random, patterned way—i.e., in a story. While some argue that this preference is fallacious because it leads to overinterpretation and predilection for compact stories over raw truths, recognizing this inborn favoritism will only aid you in fact investigation. Indeed, “some psychologist and practitioners [say] stories are psychologically necessary to decision-making about issues of fact,” say Twining and Anderson.
The Framework For Constructing Stories and Scenarios
Tillers and Schum explain that a story has both conjectural and evidentiary components, which are both necessary for adequate fact investigation. If a story has no evidentiary support, it is unlikely to be a plausible one; while a story that is only comprised of evidence without any theorizing about how evidence connected is equally as implausible. Accordingly, you must combine the two elements in order to piece together a viable scenario.
The authors further explain the interrelationship between these two elements. When the evidentiary component is lacking in scenario construction, the investigator must turn to the conjectural element and use it as an indicator, which points towards the potentially relevant evidence that will bolster the story’s plausibility. Tillers and Schum show how this would function in the following example: “[I]f an investigator conjectures that a suspect purchased a gun at a store before he shot the victim, an investigator would also have to guess that evidence showing such a purchase might be useful.” Thus, the conjecturing done by the investigator reveals that a certain piece of evidence—a receipt for the purchase of the gun—is necessary in strengthening the plausibility of the story. This form of reasoning is called retroductive reasoning, which is when the investigator creates a hypothesis and then imagines the evidence that his hypothesis might generate. But this process can also be reversed in what is called abductive reasoning. Under this reasoning model you start first with the evidence, and then hypothesize possibilities that can “explain otherwise mystifying evidence.”
The authors further refine their discussion of stories and scenarios by introducing the concepts of “gap-fillers” and “benchmarks.” A story or scenario serves as a gap-filler because it is a conjectural theory that shows how two events relate in time. In other words, it fills space even when proof of the conjectured fact has yet to be discovered. Benchmarks, on the other hand, “are stable components” of the story.
Here’s an example of how the two interact: If there is evidence a criminal suspect left his house at 9:30 pm and intended to go to the gas station but there is no other proof that he actually did, you would fill the gap in the story by assuming that he did go to the gas station. You hang a conjectural gap-filler (that he went to the gas-station) upon a benchmark (that he left at 9:30 pm), eventually constructing a story that plausibly explains how the actual events occurred. In the end, a story or scenario serves the dual purpose of enhancing the persuasiveness of your telling of the facts and serving as a preliminary fact investigation tool that helps marshal the evidence to support your theory.
The concepts and devices introduced here illustrate how nuanced fact investigation can become in litigation. And while these suggestions and concepts are part of a larger, more complex theory of Tillers’ and Schum’s preliminary fact investigation method, all these tools and devices are designed to do the same thing: prompt you to start asking the right questions during litigation. And this, explains the authors, is just as important as figuring out how to answer a question. Hopefully you can utilize this discussion to aid you in your own hypothesizing.