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MarshalPlan

© 1998 & 2006 Peter Tillers

 

Introduction to MarshalPlan

MarshalPlan is a set of procedures and tools whose purpose is to facilitate

  • pretrial case preparation
  • formal and informal fact investigation and discovery
  • the development and assessment of case theories
  • the marshaling and submission of evidence at trial, and, in general,
  • imaginative, orderly, and productive participation in the process of investigation and proof.

MarshalPlan is intended for

  • trial lawyers
  • litigation paralegals
  • private investigators
  • prosecutors
  • police detectives and other law enforcement personnel, and
  • all other persons involved in decision making about actual or possible litigation.
The General Theory of MarshalPlan

The activity of acquiring and marshaling evidence for use in litigation is partly an art: investigation and proof demand and depend on imagination and subjective judgment.

But there are also elements of "science" in investigation and proof. The process of investigation and proof is a complex activity that cannot be done either efficiently or effectively without the use of crutches -- such as pencil and paper or filing systems.

Although MarshalPlan is more sophisticated than pencil and paper, it is in an important sense "just" a crutch. In particular, MarshalPlan is a "decision support tool." It is not an "expert system." It is not a form of "artificial intelligence."

The purpose of MarshalPlan is to make it easier for investigators, lawyers, and other participants in forensic investigation and proof to keep their thinking straight, to keep track of important details, and to keep in mind -- or at hand -- how the minutiae of investigation and proof are or might be connected to each other and to the investigation or case as a whole.

MarshalPlan as a Network of Strategies for Marshaling, Acquiring, and Presenting Evidence during Forensic Investigation and Proof

The process of investigation and proof can involve a variety of distinct mental operations, including a variety of distinct strategies for organizing, or marshaling, evidence. MarshalPlan consists of "templates" of many of these types of cognitive operations and strategies.

The evidence marshaling "templates" in MarshalPlan -- the evidence marshaling methods or procedures embedded in this software -- serve many important purposes. For example, (i) such templates can inspire new ideas and possibilities, (ii) they can make it easier for actors such as lawyers to remember and "retrieve" important details, and (iii) they can facilitate the making of judgments about the links between different parts of a typical investigation or case (parts that usually number in the thousands or more).

 

The General Ingredients of MarshalPlan


Forensic investigation and proof involve (relatively) raw information and (relatively) raw and unanalyzed details:

  • For the time being pretend that the yellow boxes below are "buttons" that flip you to files, documents, stacks, or templates that invite and force you to arrange or organize evidence and information in specific ways; some of these methods are described in published papers and some aren't; please be patient.
  •  

    • Raw Evidence
    • Legal Source Material

     

     

    Forensic investigation and proof involve legal rules and conjectures about legal rules:

     

    • Legal Argument
    • Legal Rules 

    ["legal argument" in MarshalPlan presently involves mainly the making of judgments based on judgments about the weight of legal authority]

    ["legal rules" include (i) substantive legal rules, (ii) rules of procedure, and (iii) rules of evidence]

     

     

    Investigation and proof involve witnesses, or sources of testimonial evidence;testimony or statements by witnesses; and evidence about witnesses:

     

    • Directory of Witnesses
    • Evidence from Witnesses
    • Evidence about Witnesses

     
     

    Investigation and proof involve sources of non-testimonial evidence and information -- tangible, or "real," evidence:

     

    Real Evidence

    (Nontestimonial Tangible Evidence)

     

     

    Some tangible evidence is not mute but harbors (traces of) testimony and statements by actual or possible witnesses:

     

    Documentary Evidence & Records of Testimony or Statements by Witnesses

     

     

    Investigation and proof involve conjectures and possibilities based on evidentiary details:

     

    Identification of Possibilities

     

     

     

    Investigation and proof involve judgments about possible series of events over time: 

     

    Time Lines 

    (a/k/a event chronologies)

     

     

    Investigation and proof involve conjectures, based on evidence, about the connections between events over time: 

     

    Scenarios

     

     

     

    Investigation and proof involve judgments about the credibility of sources of testimonial evidence: 

     

    Witness Credibility

     

     

    Investigation and proof involve judgments about the reliability of sources of non-testimonial information and evidence -- about real and tangible evidence:

     

    Evidence about Real Evidence

    (Evidence about Non-Testimonial Tangible Evidence)

     

     

    Investigation and proof involve the winnowing of possibilities and the abandonment of fruitless possibilities: 

     

    Elimination of Possibilities

     

     

    Investigation and proof in litigation involve the marshaling of evidence on the basis of the elements of legal claims and defenses:

     

    Evidence and Counter-Evidence of Legally-Material Facts

     

     

    Investigation and proof involve the development of arguments about the relationship between evidentiary details and the legally-material facts in issue: 

     

    Formation & Charting of Inferential Argument about Legally-Material Facts 

     

     

    Investigation and proof involve assessments of the probative force of collections of evidence on the legally-material facts in issue: 

     

    Assessment of the Probative Force of Evidence:
    Probability and Weight Assessment

     

     

     

    Investigation and proof involve case theories, which involve or necessitate judgments about how all of the matters above and other matters are connected to each other: 

     

    Case Theories 

    (Development & Assessment)

     

     

     

    Investigation and proof involve conjectures, guesses, and judgments about the effects of an investigative or proof activity on sources of evidence such as witnesses and on actors such as judges and opposing lawyers:  

     

    Forthcoming(?): 

    A procedure for evaluating the possible and probable influence of an investigator, lawyer, or other actor on evidence and on sources of evidence 

    [This will be a special form of scenario analysis {with thanks to Z. Weiss for his illuminating comments}]

     

     

    Investigation and proof involve conjectures, guesses, and judgments about the rhetorical or suasive force of particular methods of submitting or presenting cases to triers of fact:

     

    Forthcoming: 

    • Narrative, Rhetoric & Persuasion in the Presentation of Evidence
    • Chronological Order of the Presentation of Evidence to the Trier of Fact

     

    ***

    See MarshalPlan Diagram for a diagram summarizing the evidence marshaling methods mentioned above.

    ***

    Each investigation is different and there is no one right way to begin every episode of investigation or proof. Hence, each user must choose the sequence of evidence marshaling operations that (s)he (or some other authorized or authoritative decision maker) deems best. Nonetheless, it is possible that there is a tendency for some evidence marshaling strategies to predominate in certain phases of investigation or proof. For example, it is likely that the enumeration and multiplication of possibilities is particularly important in early stages of investigation and proof and that pruning of possibilities tends to be more important in later phases of investigation and proof. But this is by no means inevitable.
     

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