Legal Technique and Logic | Atty.

Edmar Lerios | Group 1 | Legaspi, Moscoso, Sempron

Chapter 1: Case Analysis and Planning a Sample Story

Storytelling  The story must be about people who act
for reasons. Your story will be more
1.1 The Idea of a Persuasive Story
persuasive if you can establish his reason.
Trials as Stories  Consider what the absence of a reason
implies.
 Trials are only held when the parties
 Look for a reason or cause for the
disagree on historical facts.
defendant’s actions.
 Involves the existence or occurrence of
 Details that support the story should not
events or actions.
be hard to come by.
 It allows the parties to persuade the judge
 The trial lawyer can find details in virtually
or jury by recounting their versions of the
any destination that will support the theory
historical facts.
of the hurried defendant.
 Another name for this process is
storytelling. 1.2 The Ethics of Persuasive Storytelling
 Trials vs. Stories
o Framework of the stories – rules of Assuming You “Know” the Truth
procedure and evidence
 The lawyer, of course, is not free to
o Conclusion of the stories – elements
persuade or coach the plaintiff to alter her
of the applicable substantive law
own story simply to make it more effective.
o Content of the stories – truth
 The lawyer’s duty of zealous
Characteristics of a persuasive story: representation requires further inquiry into
the existence of additional details, not to
1. It is told about people who have reasons mention the artful use of sequencing and
for the way they act; emphasis.
2. It accounts for or explains all of the known
or undeniable facts; Assuming You Do Not Know the Truth
3. It is told by credible witnesses;
 A different situation arises when the
4. It is supported by details;
advocate is not able to identify truth so
5. It accords with common sense and
closely.
contains no implausible elements; and
 The duty of zealous representation
6. It is organized in a way that makes each
requires that we resolve doubts in our
succeeding fact increasingly more likely.
client’s favor.
 Clients may mislead us as the result of
 An advocate’s task when preparing for
misperception, forgetfulness, mistake,
trial: to conceive of and structure a true
wishful thinking, reticence, or ignorance-
story-comprising only admissible evidence
and, unfortunately, they sometimes lie.
and containing all of the elements of a
 Trial lawyers must always examine every
claim or defense-that is most likely to be
statement of every witness for potential
believed or adopted by the trier of fact.
error or falsehood.
 The lawyer must first “imagine” a series of
 Evaluate the entire universe of possible
alternative scenarios, assessing each for its
stories; we must also determine whether it
clarity, simplicity, and believability, as well
is an ethical story to tell.
as for its legal consequences.

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Legal Technique and Logic | Atty. Edmar Lerios | Group 1 | Legaspi, Moscoso, Sempron
 The key to determining the ethical value of
any trial theory is whether it is supported
by facts that we know, believe, or have a
good-faith basis to believe, are true.
 Our ultimate stories might be ineffective,
but they are ethical as long as they are not
built on a false foundation.
The Special Case of the Criminal Law
 The analysis, regarding both persuasion
and ethics, applies to civil and criminal
cases alike.
 It is a prosecutor’s duty to punish the
guilty, not merely to win on behalf of a
client. Therefore, a public prosecutor must
personally believe in the legal validity of
each case and must refrain from bringing
any prosecution that is not supported by
probable cause.
 A criminal defendant need not present any
factual defense, and in most jurisdictions a
conviction requires that the prosecution
exclude every reasonable hypothesis that is
inconsistent with guilt.
 Thus, as long as she does not rely on falsity
or perjury, a criminal defense lawyer may
argue for acquittal - that is, tell a story –
based only on “a reasonable hypothesis” of
innocence.
1.3 Preparing a Persuasive Trial Story
Developing Your Theory, Theme and Frame
A. Theory
 A theory of the case should be expressed in
a single paragraph that combines an
account of the facts and law in such a way
as to lead the trier of fact to conclude that
your client must win.
 Elements:
o It is logical – It is based on a
foundation of undisputed or otherwise
provable facts, all of which lead in a
single direction. They should lead to
each other.
o It speaks to the legal elements of
your case – all of your trial persuasion
must be in aid of a “legal” conclusion.
Your theory must not only establish
that your client is good or worthy, but
also that the law entitles you to relief.
o It is simple – a good theory makes
maximum use of undisputed facts. It
relies as little as possible on evidence
that may be hotly controverted,
implausible, inadmissible, or
otherwise difficult to prove.
o It is easy to believe – Avoid arguments
that depend on proof of deception,
falsification, ill motive, or personal
attack. An airtight theory is able to
encompass the entirety of the other
side’s case and still result in your
victory by sheer logical force.
B. Theme
 Best presented in a single sentence –
justifies the morality of your theory and
appeals to the justice of the case.
 Your theme must appeal to moral force – it
shows why the verdict should be entered.
 It is a rhetorical or forensic device. They
can be succinctly expressed and repeated
at virtually every phase of the trial.
 Your theory will explain why a particular
verdict is compelled by the law. Your
theme will strengthen your theory by
underscoring why entering that verdict is
the right thing to do.
 Whatever the theme, you will want to
introduce it during your opening
statement, reinforce it during direct and
cross-examinations, and drive it home
during your final argument.
C. Frame
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Legal Technique and Logic | Atty. Edmar Lerios | Group 1 | Legaspi, Moscoso, Sempron

 Lawyers must therefore pay careful 3. Introduction of exhibits, including real

attention to the fact finder’s frame of and documentary evidence; and
reference. 4. Absolutely everything else that you do
 A story frame provides the setting in which in the courtroom – The way you look,
facts are received – the environment in act, speak, react, move, stand, and sit.
which they are accepted, rejected,
Consider Your Potential Witnesses and Exhibits
emphasized, or discounted.
 Every case has several (or more) potential  List the legal elements of every claim or
frames, and it is the attorney’s job to defense that you hope to establish.
identify and appeal to the frame most  List the evidence that you have available to
favorable to her case. support each such element.
 Whoever controls the frame will probably  For each such exhibit, note the witness
win the trial. through whom you will seek its
introduction.
Planning Your Final Argument
Evaluate Each Witness Individually
 Good trial preparation begins at the end.
 It makes a great sense to plan your final  Ask questions like:
argument first.  What does this witness contribute to
 It is the single element of the trial where it my theory?
is permissible for you to suggest  What positive facts may I introduce?
conclusions, articulate inferences, and  Assemble all positive information about
otherwise present your theory to the trier each witness.
of fact as an uninterrupted whole.  Also imagine your final argument after
 In other words, it is during your final each witness you might call to stand.
argument that you are most allowed to say
exactly what you want to say, limited only
by the requirement that all arguments be
supported by evidence contained in the
trial record.
 By planning the final argument at the
beginning of the preparation, you will then
be able to plan the balance of your case in
such a way that ensures the record
contains every fact that you will need for
summation.

Planning your Case-in-Chief

 Your goal is to persuade the trier of fact as

to the correctness of your theory.
 Four basic tools:
1. Jury Address – consists of opening
statement and final argument;
2. Testimony on direct examination

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