Case Blueprints
On blueprints and case theories.
Advocates should always study how other advocates go about their craft. (They must also be ready to adapt/copy better practices.)
And thus a lovely eulogy was made out to the late Australian judge, Justice Peter Hely, in the Summer 2005/2006 edition of the New South Wales Bar journal. It’s a great read, as it details how the late judge, in his days as a practitioner, prepared his cases:
“…While in court he was aided by an excellent general knowledge of every field of law he practised in, but before each case he would again examine the law carefully. He would write down a list of all the legal propositions likely to come up, favourable or not. Each of the favourable ones would be supported by one compelling authority – not so that it could be thrust on the court, but in case the court asked for it. Each unfavourable proposition would be assigned an authority persuasively explaining its limitations. He also wrote down a list of facts which would have to be proved if the favourable legal propositions were to be triggered or the unfavourable ones deflected. He noted how these facts were to be proved from his own witnesses and documents. He thus worked out what he would have to establish by cross-examination of the other side’s witnesses. He would also assemble and master a small bundle of key documents from the mass usually dumped onto his desk. By these simple methods he created a blueprint for the case.
…
In court he only took notes when some significant piece of evidence was given. Later the transcript reference to that evidence would be fitted into the blueprint or the blueprint modified to accommodate the evidence. His skill was usually vindicated by events: few authorities or documents or evidence references were needed beyond those he assembled in these ways.”
Interestingly, the above accords with a pithy snippet from Conan Doyle’s A Scandal in Bohemia on how theories must suit facts (and not the other way around):
“…It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.”
Advance only those points that have support in evidence or law (or both, preferably). And though you can never prepare enough, you can still be prepared. Preparation makes a huge difference when you’re on your feet in court:
“…The plans of barristers, of course, tend not to survive contact with the opponent and the judge any more than the plans of generals survive contact with the enemy. But his plans usually needed little modification, no matter what forensic vicissitudes took place.”