Applications
| Author | John Hollander |
| Pages | 85-164 |
applications
applications
chapter three
Applications
be formulaic, but it is both simple
and eective. e analyst now knows what to prove. So
what? How should the analyst use the results? is chapter
deals with several applications that case analysis oers.
Every step in litigation oers an opportunity for use
of the end product. Every meeting with the witness, every
letter to or from counsel, every submission to court or tri-
bunal, every opinion to the client — these are all opportun-
ities to use case analysis. ey also present opportunities to
update and improve the analysis conducted to date.
Consider these events that occurred during typical liti-
gation:
• client interviews
• the review that occurs when the opposition’s case is
disclosed
• witness interviews
• retainer and interview of experts
• preparation for examinations
• documentary disclosure
• examinations for discovery/depositions
• motions before trial
• pre-trials and mediation
• trial preparation
• opening addresses
Before counsel take any of these steps, part of the
preparation should include case analysis. Of course, not all
issues are known in the early stages the case, as not all wit-
nesses have been identied, and not all documents have
been produced, much less read and analyzed. Nevertheless,
lawyers should prepare as much as they can before they en-
counter any situation. is preparation should include case
analysis along the lines identied in the previous section.
e following sections focus on each of these “appli-
cations.” Imagine an app for a smartphone or tablet. e
app opens a checklist of steps to be taken. e steps in
this app are already set out in Chapter . To give the app
some substance, this handbook uses the facts presented in
the Case Scenario set out in the Appendix, together with
some judicious assumptions.
e purpose of this chapter is to provide the reader
with context for the principles and techniques described
in Chapter . It allows the reader the opportunity to prac-
tise these techniques as an exercise.
It may be useful for the reader to consult other hand-
books in the Young Advocates Series, such as e Art of
the Interview and Discovery Techniques for a discussion
of techniques that are specically aimed at those subjects.
1 John Hollander, The Art of the Interview: How Lawyers Talk With
Clients (Toronto: Irwin Law, 2013), online: www.irwinlaw.com/
titles/art-interview.
2 John Hollander, Discovery Techniques: A Practical Guide to the
Discovery Practice in Civil Actions (Toronto: Irwin Law, 2013),
applications
Client Interviews
their clients several times during
the legal mandate. e initial interview often provides
an introduction to the issues, although this is often re-
stricted to those identied by the client. With case an-
alysis, lawyers can put the hard questions to their clients:
“e opposition will likely take this position. What do
you have to say about that?” Whether they litigate or not,
lawyers should take the endgame into account. e case
may get to trial. e question must therefore arise early
and often: “How are we going to prove that?”
The role of case analysis
progresses, client interviews may focus on
specic issues that arise. Clients typically want to know
their prospects for success, both in respect of the whole
case and in respect of a specic issue. Case analysis per-
mits a reasoned response, as analysis arms the lawyer
to ask more questions, to delve further into areas both
known and unknown. ere may be a key fact that will
tip the scales. e role that one fact plays may become
obvious with case analysis. It may be as simple as whether
party A or B ran the red light.
Lawyers rarely know all the facts that will be proved.
If they did, there would be little need for most trials. ey
have to assume which facts will be essential for success,
but despite a lawyer’s best eorts, gaps often appear. Law-
yers must then try to prove the facts that ll those gaps.
online: www.irwinlaw.com/titles/discovery-techniques.
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