3.6 Graphics Help with Reverse Engineering
Finally, at some point in the fact investigation process the litigator needs to think about graphics. As with analogies, graphics can help you reverse engineer your case with your end game in mind.
Think about how you might present your case on a single anchor exhibit. An anchor exhibit is a chart or board that you display throughout the trial to show or anchor the jury to your case theory, and why you should win. It should clearly and simply demonstrate the fairness of your case. It might be a key quote from an expert or opposing witness. It might be a graphic representation of the number of termite infestations that occur. It might be a computer simulation of the way the construction design of the homes led to the termite infestation.The importance of creating a key graphic can’t be over emphasized. The exercise forces the lawyer to focus their case into a concise clear representation that will teach their facts and tell their story. While good graphics can not overcome bad facts or a incoherent case theory, good graphics can go a long way toward teaching your good facts and making your best arguments about your bad facts, so that the opponent, mediator, judge and or jury, as the case may be, will understand your case. If attempted early, it will also help you decide what facts you should particularly look for, to make the visual complete and persuasive.
It is vital for the lawyer to engage in case analysis to fulfill the dual roles the lawyer serves as both researcher/definer of the client’s situation, and the shaper or creator of the story or narrative that needs to be told on the client’s behalf. This narrative, with its component parts, legal theory, factual theory, and theme, will be necessary to persuasion not just at trial, but in a variety of strategic contexts; whether counseling the client, negotiating with the opponent, advocating the client’s interests before a mediator.
It will provide persuasive focus when speaking to the client about the client’s case and flexibility to make quick decisions as more and more is learned about the facts. It also not only provides the basis to determine where other facts and theories may lie, but also to present an accurate and complete preview of the case to a focus group, to determine what may hinder a decision maker in understanding the case and seeing it from the client’s point of view.Case analysis helps forms an understanding of the client’s BATNA (best alternative to a negotiated agreement), and is therefore in the background of informal dispute resolution all through the lawyer’s handling of the case. Without an accurate comprehensive and creative case theory the lawyer’s strategy is haphazard and random, and lets the legal procedure dictate case strategy, rather than provide the client with an understanding of the end game, and helping the client and lawyer decide the best steps to take to reach the client’s goals.
FURTHER READING
Books
James Boyd White, The Legal Imagination Studies in the Nature of Legal Thought and Expression, (Boston: Little, Brown and Company, 1973).
Gary Bellows and Bea Moulton, The Lawyering Process, (Foundation Press, 1981)
Ruggero T. Aldisert, Logic of Lawyers, A Guide to Clear Legal Thinking 3d, (NITA, 1997)
David Mellinkoff, The Language of Law, (Boston, Little Brown & Co. 1963).
Aristotle, Rhetoric
Articles
Robert F. Hanley, Brush Up Your Aristotle, 12 LITIG. 39 No. 2, (Winter, 1986)
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1. 637 A. 2d. 34 (1983).
2. I was first introduced to the use of time lines as a planning model by UCLA clinicians Dave Binder and Paul Bergman, in their book, Fact Investigation (1984).
3. Binder and Bergman first introduced me to this planning model. NITA trial advocacy programs have picked up on this model and used it to help plan and organize a cross-examination.
For example the cross-examiner might have a number of points to make during a cross-examination. Points on bias, lack of opportunity to observe, facts that the witness will agree tend to show the cross-examiners version of the evidence. One effective way to arrange these points of cross is to arrange them as a story teller might arrange them in the telling of that witness story. They might start with who the witness is, friend, foe, and their job as it relates to what they saw. It might then precede through the points chronologically, starting with the policies and procedures they usually operated under, then start with the facts they know consistent with the story presented in the order the cross-examiner wants to present, which pauses from time to time to point out to the listener what the witness did not do, as well as the witnesses motivations along the way, ending with the contact and interest that the witness developed and continues to develop with the opposition party in the case.4. What follows is adapted from, Anthony J. Bocchino and Samuel H. Solomon, “What Juries Want to Hear: Methods for Developing Persuasive Case Theory,” 67 TENN. L. REV. 543, (2001); These focus group techniques are more fully described in David Ball’s, How To Conduct Your Own Focus Groups (NITA, 2001).
5. The Myers-Briggs Type Indicator (MBTI) personality assessment tool is a written instrument that “indicates” a person’s likely psychological type. See Myers-Briggs.org.
6. See Aristotle’s Rhetoric.
7. See “Death Becomes Him,” by Jack Lessenberry, at http://kevork.org.vaniftyfa.htm.