The Theory of the Case
David A. Piehler, Piehler & Strande, S.C.

Pilots talk about the concept of “situational awareness.” It involves the loss of the big picture of a flight. Such loss is a frequent contributor to aviation accidents. The same concept can apply to litigation. In the context of litigation case management, situational awareness might be defined as, “the ability to identify, process, and comprehend the critical elements of information about what is happening with regard to the case.” Loss of situational awareness in litigation can, at the least, result in unfocused and inefficient case management, and, at the worst, result in a significant adverse verdict. I submit that a major cause of loss of situational awareness in litigation is the failure to develop a Theory of the Case and to refine it as the case progresses.

I.    What is the Theory of the Case?

The Theory of the Case is an organizing principle of the entire case, from initial investigation to appeal. Author and law professor James McElhaney defined it as, “the basic idea that not only explains the legal theory and the factual background but also ties as much of the evidence as possible into a coherent, credible whole.”  My simpler formulation: “What’s your story” or “Why shouldn’t this claim be paid?” The Theory of the Case may be implicitly considered or explicitly expressed. It may be implicit in the sense that as you work on your case you may have an unarticulated idea of how you want to handle the case. An explicitly stated Theory of the Case is better, since articulating the theory helps you crystallize your thinking about the case and your proof. (Admit it—have you ever sat down to prepare for a deposition and found yourself wondering, “Why did I schedule the deposition of this witness?”)

Ideally, the Theory of the Case should be plausible (i.e., it has to pass the “snicker test”), simple, and easy to understand. It should appeal to common sense and the values of the community in which the case is venued. It should also reflect the underlying “morality play” of the case, which commentators tell us influences the jury.

The defense’s Theory of the Case is inherently reactive, responding to the plaintiff’s theory. Since the process of discovery doesn’t remove all mystery about how the plaintiff will present its case, it will evolve during trial (rapidly, in some cases) as the case unfolds. Because each new piece of information obtained (including perceptions about witness credibility and likeability, expert opinions, and factual evidence developed by additional investigation) affects the case, the Theory of the Case will change throughout the life of the case. At its most basic level it considers both liability and damages. Because liability is different for different plaintiffs (think opposing driver versus guest passenger), you may have different theories for each plaintiff.

Your Theory of the Case will depend on your goal for how the case will be resolved, or, if tried, whether it will be a court trial or a jury trial. You may even have different theories for different stages of the case—summary judgment, mediation, pretrial motions, a court trial, a jury trial, or the court of appeals. You may be tempted to have multiple theories in the event one isn’t accepted. We all learned in our first semester of Civil Procedure that it’s permissible to plead inconsistent theories. This may be fine for pleading, motion arguments or appeal, but caution is warranted at trial to avoid either confusing the jury or giving the impression that you lack confidence in any of your arguments. For a jury, the K.I.S.S. principle applies, and one theory is much preferred over potentially inconsistent alternative theories.

II.    Why is Having a Theory of the Case Important?

A Theory of the Case guides the entire strategy of the case. It involves an interactive process throughout investigation, discovery, and trial. Each new piece of information merits revisiting and, if necessary, revising the theory. It determines your strategy for investigation and discovery, your pretrial motions, your trial brief, trial exhibits, jury instruction and special verdict request, voir dire, opening statement (you get the idea). It orients you to the forest rather than getting you lost in the trees. In short, it gives you situational awareness. It may lead you to present fewer witnesses rather than more, engage in less discovery, or choose to forego experts. Your clients will appreciate the cost savings and efficiency.

III.    How Do You Develop a Theory of the Case?

Ideally, you’ll collaborate with your client to agree on a Theory of the Case. In a perfect world, you would get the file with a thorough investigation and a thoughtful analysis of the case from the adjuster. For those clients lacking the sophistication (or willingness to respond to your communications) to engage in such dialogue, you’ll need to develop the Theory of the Case on your own. Ironically, in all the various reports clients have asked me to use for reports on files, I don’t recall any of them explicitly asking about what my Theory of the Case was.

Professor McElhaney suggests asking these questions to help develop a Theory of the Case:

1.    Is this what really happened?
2.    Does this statement sound plausible?
3.    Does it add up to a claim or defense?
4.    Where are the holes in my case?
5.    Which of my witnesses are credible?
6.    What is the strongest point in my opponent’s case? Am I ready to meet it?
7.    What is the weakest point in my opponent’s case? Do I take advantage of it?
8.    Will my client’s position seem fair to a neutral observer? How can I present it so it will?
9.    Will my opponent’s position seem fair to a neutral observer? 

Never become overly enamored with your Theory of the Case. It’s not engraved in stone. It will necessarily evolve as the case progresses. As one commentator said, “Nothing ruins a good story like an eyewitness.” Be prepared to make changes in your theory as the case unfolds. Play devil’s advocate and challenge your own theory. Be aware of how it will be viewed by the ultimate fact finder.

Your theory must adapt to the maneuvers of the plaintiff’s attorney. We’ve all seen the master at ad libbing who is constantly morphing his or her case throughout discovery and trial. The defense must react and respond accordingly or be outflanked. Likewise, court rulings may not go your way, admitting damaging evidence for the plaintiff, or excluding helpful evidence for the defense. 

IV.    Conclusion

This isn’t rocket science. We all develop a theory of the case from our first review of the file (whether explicit or implicit) as we assimilate information and begin to formulate a response. However, circumstances can conspire to cause you to lose situational awareness. Many cases are “mill run” matters which we’ve seen often (one rear-ender soft tissue case is much like the next). We may feel implied or express pressure from clients to spend as little time as possible on a file. A large case load may press you for time to think quietly about a case. The point of this article isn’t to teach you something you didn’t already know or do. Rather, it’ is to encourage you to overtly address the question of what your Theory of the Case is, and to occasionally revisit that theory throughout the progress of the case to either validate or refute it, and adjust your actions accordingly. Doing so will inevitably lead to better outcomes, and more personal and client satisfaction.

Author Biography:

David A. Piehler is of counsel to Piehler and Strande, S.C., Wausau, Wisconsin. He has represented insurers and insureds for over 40 years, handling liability defense and coverage cases and worker’s compensation cases.
 

James W. McElhaney, Legal Writing that Works, ABA JOURNAL (July 1, 2007).
James W. McElhaney, The Picture Method of Trial Advocacy (1992).