3.1 A Litigator’s Paradoxical Roles

To see how these roles play out, let’s examine the litigator roles, in particular. There are two somewhat paradoxical models the litigator has when conducting fact investigation and doing case analysis.

At the same time lawyers are the creators and producers of a persuasive story. They are often less concerned with what actually happened than with which story they can tell to allow the client to maximize his freedom. Lawyers play the role of blocker and protector, as well as interpreter and spokesperson on behalf of the client. They are the public relations agent or “ad man” for the client within the context of the legal system. They are at all times the negotiator, advocate, and persuader on behalf of the client.

How does the lawyer reconcile himself to these two often paradoxical roles, in the context of fact investigation planning and analyzing cases? To answer this question the lawyer needs to look ahead to the end of the process. While it is true that most cases settle (latest estimates are 99 percent for civil cases filed in federal court), all litigators are intimately aware that the client’s case could end up in court. They build their case with that in mind. Even where their cases settle, the lawyers frame to their opponent what they say happened in much the same way that they would tell the court in opening statement and closing argument about why they should win. So what is it that the end game requires of the lawyer? The lawyer must prepare to present the client’s case with three different theories in mind:

the legal theory,

factual theory, and

persuasive theory or theme

Understanding the role and interplay of these three theories in the end game of litigation will instruct the lawyer on how they are to carry out their role as fact investigator, analyze the case, and best prepare the case for settlement or for final trial.

It may seem obvious and even trivial to say that a lawyer needs to have a legal theory in mind when he conducts fact investigation, but many judges and juries recall trials presented when the lawyer didn’t seem to be clear about which legal theory he was presenting. It is very important to understand how a clear legal theory can help persuade a decision maker to decide the case in favor of the lawyer’s client. The secret to a good legal theory is that it carries with it the power of logic—the power of the syllogism.

3.1.1.1 Syllogisms and Legal Interpretation

Syllogisms, you may remember, comes from analytic philosophy. A common example of a syllogism that is much discussed in beginning undergraduate philosophy classes is:

The above conclusion is said to be logically entailed, or necessary. The minor premise is included in the major premise and the conclusion is driven or required by the major premise.

The advocate tries to create this same sense of logic, the logic of entitlement, by stating a major premise incorporating the facts as they think them to be. For example:

Of course, as every lawyer knows, and as Aristotle pointed out thousands of years earlier, there are very few situations in the real world where a conclusion is logically entailed.

3.1.1.2 Paramount Communications, Inc. v. QVC¹

Still, the importance of a syllogistic reasoning, or having a legal theory, should not be underestimated. Take for example the case of Paramount Communications, Inc. v. QVC. In that case the lead litigator for one of the parties decided to try to predict what law the Delaware Supreme Court would adopt in order to determine whether the corporate board had adequately protected shareholder rights. The board had been accused by the shareholders of breaching a duty of care to them by approving a merger between the defendant company and a takeover company without providing adequate assurance they were getting the shareholders top dollar for their shares. The lead litigator predicted that the Delaware Supreme Court would eventually adopt a standard that would require the board of directors to “shop” the company, or put the company “in play” or “up for bid,” in order to fulfill their fiduciary duties to the shareholders. During depositions of the defendant company’s board of directors, the litigation team continually asked the board members whether they thought it was their duty to shop the company before accepting the offeror’s bid for the target company. The board members said no. When the Delaware Supreme Court agreed with the litigator’s prediction—that it was the board’s duty to shop the company—the result was logically entailed.

3.1.1.3 Developing A Legal Theory

For the beginning litigator, the feeling that he ought to have a legal theory before he does discovery can create other feelings of inadequacy and uncertainty that can lead to paralysis in the fact investigation process. But there are a number of practical steps that lawyers can take to at least start to identify their possible legal theories and allow them to start anticipating the areas of fact investigation. For example, the plaintiff’s counsel or solo practitioner needs to find someone with experience in the area to consult or with whom to mentor. In addition, there are often a number of “how-to” references that provide excellent legal overviews of various litigation areas. Or, call that favorite law professor and ask her to brainstorm with you concerning the law in the area. Though they may not be up on your jurisdiction’s legal peculiarities, they can be very helpful in identifying new trends and new leanings on the cutting edge of various fields.

Of course the defendant can start with the complaint. What causes of action are proposed, and what does your legal research tell you about the ambiguity that exists in the law referred to in the complaint? Read the complaint carefully, even where you are not inclined to bring Rule 12(b)(6) motions. Any vague, boilerplate, or cookbook language in the complaint can signal areas of legal, if not factual, ambiguity.

In addition, there are a number of legal issues to get straight before proceeding to the witness interviewing. For example, if defending a corporation, does in-house counsel want to first conduct an internal investigation? Will such an investigation be privileged? Does the corporation want the litigator to promise confidentiality or job protection before conducting interviews with key employees? While these are factual issues, they involve the lawyer in doing some legal research and client counseling before heading off to do discovery.

While some lawyers start with the law and legal theory, there are many lawyers who feel that having a substantive legal theory early on in a case is of much lesser importance than having a factual theory. They argue that they later will find the law to fit the facts. Big firm commercial defense lawyers especially seem to send this message to their associates when they send them out to do fact investigation. The associates are often on their way before they have been given any idea for what they are looking. Part of this is simply the problem of senior lawyers who are “too busy” to take the time to be clear about their task or the delegated assignment. Associates and partners alike should aim for clarity before any assignment is given, whether the partners already know the likely applicable statutes or major cases in the area, or the partner or someone in the firm has previously written a motion for summary judgment or memorandum of law that covers some of the major issues in the case. What treatises or legal resources would the more experienced lawyer consult before they would head out to interview? Answering these questions greatly speeds the associates on their way.

Regardless of whether the law or the facts come first, at some point the litigator must return to law to get as close to a logical syllogism as possible. One very good source of major premises for syllogistic reasoning purposes can be found in likely jury instructions. For example, cases often turn on the credibility of witnesses, the weight the jury puts on expert opinions, the difference between direct and circumstantial evidence, or an understanding of the burden of proof. Consulting the model jury instructions at some time in the case analysis process can tune the litigator in to a number of follow up questions or areas of inquiry that she might otherwise miss.

In sum, whether it is because the client will need to understand and predict the likely outcome of a trial, or because there will finally be a trial, a litigator must develop legal theory(s) in order to provide good, sound, practical advice to his clients.