BASIC PRINCIPLES OF ADVOCACY
(1) Develop a theory of your case and stick to it. Make sure that everything you do furthers that theory, and don't waste time on anything irrelevant to it. A case theory is the simplest model that explains what happened and why you are entitled to a favorable verdict, and forms a cohesive, logical view of the merits of the case that is consistent with common everyday experience. A case theory contains the following elements:
Law. Your theory should clearly indicate the proper legal outcome of the case. You must understand the elements of your cause of action or defense, and whether and how you can prove them. If there are multiple legal issues, you must decide what is your strongest legal argument. Just because an issue could be argued does not mean you must do so. For instance, a defendant in a personal injury case could argue that the plaintiff cannot prove liability, or that plaintiff suffered no damages, or both. If you represent a defendant who, at the time of an accident, was drunk, speeding, driving in the wrong lane, and did not have a license, could you sincerely argue that your client was not negligent? If the plaintiff suffered only whiplash injuries that cannot be medically verified, your theory of the case can more comfortably rest on an argument that the plaintiff cannot prove any injury.
Facts. Your theory must be consistent with the weight of the evidence. It also should identify which are the most important items of evidence that support your version of the disputed events. Just because evidence is available does not mean it must be presented -- even if you have spent time and effort to gather it. You must develop the ability to discern helpful from confusing information and the discipline to limit yourself to the presentation of facts supporting your theory.
Weaknesses. You must recognize, acknowledge, and have an explanation for weaknesses, gaps, inconsistencies, and improbabilities in your case.
Emotions. A good theory includes an emotional component. What injustice has been committed? Why is your client morally deserving of a verdict?
Opponent's case. Recognize that there is another side to the story. Analyze your opponent's case to determine where the disputes will arise, what the strengths and weaknesses of the adverse case are, and develop an explanation for why your opponent's version is wrong.
