It has been said that the trial casts a backward shadow. What that means is that the requirements or demands of a possible trial influence the activities of lawyers prior to trial.

• I would like to take credit for this insight, but I can't; someone — just now I can't remember who — talked about the shadow business quite a long time ago.

This backward shadow or penumbra theory can be overdone. For example, even if a trial eventually actually takes place, prior to any such trial the combatants are often uncertain whether or not a trial will take place, much less (precisely) what kind of trial. Moreover, considerations other than the possible contours of a possible trial influence pretrial investigation and work.

Nonetheless, the (expected, projected) demands of a potential trial can and often do influence pretrial preparation and investigation. So, let's begin, not at the beginning, but at the end. Let's refresh our recollection about one of the kinds of things that lawyers may be required to do at trial.

(a) Legal rules & defenses & their elements. There are different ways to describe the task of a lawyer at a trial. One way to think of his or her task at trial is to think of the matters she must prove, and one way to think of what she must prove at trial is to think of what the law requires her to prove (or disprove).

One way to think of {describe} the kind of proof the law requires at trial is to think of {by talking about} the requirements of the substantive law {substantive legal requirements}; that is, one way to think of {describe} what the law requires at trial is to think of {by talking about} substantive legal rules.

The law, of course, contains legal norms that specify the conditions under which a person or party is or is not civilly or criminally liable. In a trial or litigation setting such substantive legal rules turn into "claims," or causes of action, and "affirmative defenses."

The meaning of a claim or defense is not left up for grabs. There are definitions of claims and defenses. (That's one of the things you study at law school.) In a litigation setting claims and defenses are defined in terms of "essential elements"; each claim and each defense has certain essential elements, without which a claim or defense cannot be upheld.

For example, the essential elements of a negligence claim might be: (a) duty of care; (b) breach of duty of care; (c) injury caused by breach; and (d) "proximate cause" (which, I shall stipulate, includes the element of the foreseeability of the injury or harm in question).

Defenses may also have elements. Some defenses have no elements because some defenses are merely denials of an element of a claim. However, some defenses do have elements. These defenses are, ordinarily, affirmative defenses. For example, "waiver" may be a defense to an otherwise valid negligence claim. This defense may be (a) a voluntary and (b) knowing (c) surrender (d) in writing of (e) a legal claim or potential legal claim (f) in exchange for legal consideration.

(b) Elements and Proof. The law does not assume or presuppose the truth of all of the elements or ingredients of any particular claim or affirmative defense. It ordinarily takes exactly the opposite course: it assumes or presupposes that the essential elements of claims and defenses are not true unless the party who wishes to tale advantage of a claim or defense affirmatively demonstrates that their requirements have been satisfied. The law achieves this (seemingly commonsensical) result by providing that (ordinarily) the proponent of a claim or affirmative defense has the burden of proving that claim or affirmative defense.

To demonstrate that you have satisfied the requirements of a legal rule creating a claim or defense you must demonstrate or prove that there are facts that satisfy the legal requirements for recovery; that is, you must submit evidence that sufficiently establishes the existence of facts that show that each of the elements of your claim or defense exists. Or, more simply stated, you must prove each of the essential elements of your claim or defense.

(c) Elements of Claims and Defenses, and the Organization of Pretrial Investigation. It is far too soon to consider all of the ways in which the substantive law applicable at a trial may influence pretrial investigation. However, it is not too soon to consider some simple ways in which substantive law may influence or shape pretrial investigation and preparation.

Recall that claims, or causes of action, consist of elements, and that the same holds true of affirmative defenses. Now please also recall (from your other legal studies and experiences) that in modern litigation systems parties may join or use a variety of claims and defenses in any particular lawsuit. Consequently, quite a few elements of claims and defenses can be in issue in any particular case.

For example, in the diagram shown below (Figure 1) the claims or causes of action in the case are "negligence" (N) and "breach of contract" (K). The lines emanating from the boxes containing N and K represent the elements of each of these two claims. For example, the existence of a duty of care is an element of a (certain type of) negligence claim and the making of an offer is an essential element of a certain type of contract cause of action. The letters "W", "CN", and so on, represent affirmative defenses. There can be more than one affirmative defense to any one claim or cause of action. For example, "W" represents a defense of "waiver" to a negligence claim and "CN" indicates the defense of "contributory negligence." (In the second network below "F" represents "fraud" and "D" represents "duress.") As the arrows emanating from these boxes suggest, each affirmative defense consists of components or essential elements. For example, the law may provide that a claim of negligence can be defeated by a waiver if and only if (it is shown that) the waiver was knowing, voluntary, and in writing.

Good lawyers are imaginative and creative. However, they must also be methodical. If you ponder the above diagram, it is easy to see it can become rather difficult to keep track of the elements of claims and defenses that are in issue in any particular case. For example, in the above case, if we assume that all claims and defenses and all of their elements are denied rather than admitted, and if we assume that the boxes and lines indicate the number of claims, defenses, and elements, the total number of elements in issue in the case is 26; that is, the parties in this relatively simple case have to keep track of 26 different matters that are in issue.

If one is not methodical, it is easy to forget the need to gather evidence about any given element of a claim or defense. Consequently, some observers (many observers) of trial and pretrial practice have suggested that trial lawyers use a checklist based on their analysis of the substantive claims and defenses in a case. In a simple version of this checklist, one set of boxes would contain the elements of the claims and defenses in the case and there would be another, parallel set of boxes in which the trial lawyer could indicate whether or not he or she has any evidence pertaining to each element of each claim and defense. This sort of checklist might look like this:

• Complexity and Crutches. This sort of checklist you see above may seem rather mundane. And I suppose it is that. The existence of checklists, however, is a testament to a problem that you will face again and again: the complexity of the problems facing the trial lawyer and the investigator. Consider what can happen in a case in which a plaintiff asserts the following legal claims against a defendant: negligence, breach of contract, defamation, and deprivation of civil rights in violation of 42 USC §1983. Remember that each of these claims has essential elements, affirmative defenses can be asserted against each of these claims, and there is or may be evidence bearing on each of the elements of each of these claims and defenses. Schematically portrayed, what we now have looks like this:

• As you can see, in a case like it might be rather hard to keep track of where your case stands at any given moment.

If one decides to use the rule-based approach sketched in the above notes to structure pretrial investigation, the sequence of investigative steps — such steps include "mental" steps, they include conceptual, work —, the sequence of steps might well be the following:

1. Identify pertinent claims and defenses

2. Specify the elements of those legal claims and defenses

3. Specify the factual questions associated with those elements of those claims and defenses

For example, if an element of "negligence" is "breach of duty of care" determine that the possible historical event that may instantiate that generic element in this case is an event such as "Egregious Employer removed a safety guard rail on June 1, 2001, from the milling machinery at his plant in Mills, Ohio."

4. Marshal the available evidence (and identify missing or nonexistent evidence) regarding such elements of such claims and defenses.

A graphic representation of the relationships and structure described above is the following diagram (Figure 4):

 

You might find it useful to use charts or diagrams of the sort found above to keep track of your investigative work (and to prepare for a trial).

Substantive Legal Rules.rev
Evidence of Material Facts.rev
Evidence&CounterEvReMatFax.rev