Case Analysis: What Is It?

• Author: John Hollander
• Pages: 5-51

case analysis: what is it?

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case analysis: what is it?

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chapter one

Case Analysis: What Is It?

Introduction

   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

 

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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?

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• 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

enemies.

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