Case Analysis: What Is It?

AuthorJohn Hollander
case analysis: what is it?
case analysis: what is it?
chapter one
Case Analysis: What Is It?
   are a judge trying a case. You have
read the plainti’s claim and the defence, but that is all.
You know who the parties are, you know the lawyers, you
know the general description of what transpired to bring
the parties to trial (the pleadings). But in actuality, you
don’t know very much. As a judge, you want to know,
“What is this case about? What is in issue?” You don’t want
a long and detailed explanation, because that is what you
expect from the witnesses.
e lawyer for the plainti then rises to deliver an open-
ing address and fteen minutes later, you have a good idea as
to what the plainti has to say. You ask defence counsel for
an opening address right then and there, and fteen minutes
later, you have a good idea as to what the defendant has to
say. You now understand the two or three points of con-
ict — the issues that you have to resolve. Remember that
you are the trial judge, and your job is to resolve those issues.
Put that way, it sounds simple, doesn’t it? Unfortu-
nately, lawyers don’t have the luxury of having two experi-
enced and knowledgeable consultants to tell them what
 
issues they have to resolve to do their job. Lawyers have
clients with varying levels of sophistication, and the cli-
ents have some — but not all — of the relevant documents.
ey have imperfect recollection; they have biased opin-
ions that may not be founded on facts that they can prove.
Recipe for case analysis
   to the lawyer to absorb all of the sources of infor-
mation — witness statements, documents, and other types
of demonstrative evidence and then roll this mixture
into a coherent case. Lawyers are called upon to do this at
the initial interview, long before they are capable of com-
pleting the careful analysis that they have been taught in
law school. All too often, lawyers still cannot complete
that careful analysis as they start the trial. After all, if all
the facts were known and conceded, why have a trial?
Case analysis is a three-step process of issue identica-
tion, statement of the essential elements of the case, and
implementation. e steps are not entirely independent;
lawyers do not identify all the issues and factual elements
before they embark upon the implementation. As they re-
ceive information at the initial interview, lawyers ask ques-
tions that stem from their initial analysis.
Use during the interview
   who meets the client for the rst
time. Perhaps the lawyer knows that the client suered an
injury, such as a broken leg.
Is this a tort case?
Is there worker’s compensation?
Is this a case of assault?
case analysis: what is it?
Is this a case of negligence?
Is there insurance?
e typical client complains about the injury and
blames somebody for some act that caused the injury. e
legal cause-and-eect and the consequences are up to the
lawyer to determine. All the client wants is compensation.
As a lawyer embarks upon the initial interview, the lawyer
can eliminate several extraneous considerations, and by
the end of the interview, the lawyer should know what
type of case it is. is is the initial stage of case analysis.
Cases typically have two types of party, “us” and “them.
Lawyers want to buttress the positive aspects that favour
the “us” position and downplay the negative aspects; nat-
urally, they want to do the reverse for the “them” position.
is is much like the denition of justice attributed to
Polemarchus early in Plato’s Republic. In eect, lawyers try
to help their friends (their clients) and do harm to their
Case analysis is always a work in progress. From initial
interview until closing argument at trial, the lawyer renes
the analysis as more facts arrive. Some assumptions made
during the initial interview turn into fact or ction as the
case develops, while other assumptions are never resolved
as one or the other, especially in the case of settlements.
   a barn. ere is re insurance in place.
e barn burns down. e case begins as a routine re in-
surance claim. After the demand for payment and proof
of loss, the insurer establishes that the insurance policy

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT