Chapter 2: Planning and Preparation

Before trying a case, an advocate must effectively plan and properly prepare it: this chapter walks through the stages of a case, the development of a winning case theory, the analysis of evidence, and the submission of jury instructions and verdict forms — the integrated plan that distinguishes prepared advocates from improvising ones.

Chapter 2

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2.1 Introduction

2.2 Stages of a Case

A. Civil Jury Trial

B. Criminal Jury Trial

C. Bench Trial

D. Administrative Hearing

E. Arbitration

2.3 Case Book

A. Case Book Design

B. Case Book Contents

2.4 Planning Objectives

A. Beginning at the End

B. Analysis by Advocate

C. Analyzing the Opponent

D. Analyzing the Decision Maker

2.5 Creating a Case Theory

A. Theory of the Case Examples

B. Selecting the Best Case Theory

2.6 Case Analysis

A. Selecting Claims and Defenses

B. Composing a Factual Summary

C. Factual Summary Examples

D. Crafting a Story

E. Identifying Factual Issues

F. Selecting Evidence

2.7 Developing a Strategy

A. Strategic Example

B. Strategic Assessment

2.8 Selecting the Forum

A. Choosing the Decision Maker

B. Jury Trial

C. Advisory Jury

D. Role of Judge and Jury

E. Role of Administrative Judge

F. Role of Arbitrator

G. Roles of Court Personnel

H. Roles of Administrators

2.9 Jury Instructions

A. Right to Jury Instructions

B. Sources of Instructions

C. Instructions

2.10 Planning and Submitting Jury Instructions

A. Planning the Charge

B. Submitting Instructions

2.11 Verdict Forms

A. Types of Verdict Forms

B. Proposing a Verdict Form

2.12 Final Decisions

A. Judgment, Order, and Award

B. Findings of Fact and Conclusions of Law

2.13 Burden of Proof and Presumptions

A. Burden of Production

B. Burden of Persuasion

C. Types of Burdens of Proof

D. Allocation of Burdens

E. Practical Impact of Burdens

F. Presumptions

G. Inferences

H. Burden/Presumption Relationships

I. Presumption/Burden Instructions

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REFLECTING ON ADVOCACY

Few things are brought to a successful issue by impetuous desire, but most by calm and prudent forethought.

—Thucydides

Real change, enduring change, happens one step at a time.

—Justice Ruth Bader Ginsburg

Introduction

Before trying a case, an advocate must effectively plan and properly prepare the case. Who knew? Experienced attorneys share similar approaches to case planning. This Chapter explains the preparation process and describes effective planning methods. Specific sections cover the stages of a case, the development process, the selection of case theories, the analysis of evidence, the issuance of orders, the submission of jury instructions and verdict forms in a jury trial, and the burdens of proof and presumptions. Chapter 3 describes additional procedures including pretrial and prehearing conferences, evidence preparation, and motions.

Stages of a Case

A. Civil Jury Trial

The trial lawyer must review each stage of a trial and prepare an integrated plan for the presentation of a case. The stages of a civil trial, after the pretrial litigation process of pleading, discovery, and motion practice has been completed, include the following:

• Pretrial conference.
• Chambers discussion immediately preceding the beginning of the trial.
• Jury selection, with the plaintiff proceeding first, followed by the defendant (in some jurisdictions defendant proceeds first).
• Opening statement by the plaintiff, followed by the defendant’s opening unless reserved until commencement of the defendant’s case.
• Plaintiff’s case, including the introduction of evidence and direct examinations by plaintiff, cross-examinations by defendant, and redirect and recross examinations.
• Defendant’s motion for directed verdict or for judgment as a matter of law.
• Defendant’s case, including the introduction of evidence and direct examinations by defendant, cross-examinations by plaintiff, and redirect and recross.
• Rebuttal (if necessary), with the plaintiff introducing rebuttal evidence followed by any rebuttal by defendant.
• Motion for judgment as a matter of law (or for a directed verdict), which can be brought by the plaintiff, the defendant, or both.
• Final selection of jury instructions by judge.
• Closing argument by plaintiff, followed by defendant’s summation, followed by plaintiff’s rebuttal; or, in some jurisdictions, closing argument by defendant, followed by plaintiff’s summation.
• Charge to the jury (in some jurisdictions the judge instructs the jurors before summation).
• Jury deliberations.
• Verdict.
• Post-trial motions for the losing party, including a motion for a new trial and a motion for judgment as a matter of law (also known as a judgment notwithstanding the verdict).
• Post-trial motions for the winning party, including motions for costs and fees and perhaps a new trial motion (e.g., verdict damages were too low).
• Notice of appeal.

B. Criminal Jury Trial

The stages of a criminal trial after a defendant has been arrested and arraigned and after preliminary hearings have been completed are:

• Pretrial conference.
• Chambers discussion immediately before the start of the trial.
• Jury selection, usually with the defense proceeding first, followed by the prosecutor (in some jurisdictions the prosecution proceeds first).
• Opening statement by the prosecutor, followed by the defendant’s opening unless reserved until the commencement of the defendant’s case.
• Prosecution’s case, including the introduction of evidence and direct examinations by the prosecutor, cross-examinations by defendant, and redirect and recross examinations.
• Defense motion to dismiss or for acquittal.
• Defendant’s case (unless defendant declines to introduce evidence), including direct examinations by defendant, cross-examinations by prosecutor, and redirect and recross.
• Rebuttal (if available or necessary), with prosecutor introducing rebuttal evidence followed by defense rebuttal.
• Renewal of defendant’s motion to dismiss or for acquittal.
• Final selection of jury instructions by judge.
• Closing argument by prosecution, followed by the defendant’s summation, with many jurisdictions permitting rebuttal by prosecutor, and a few jurisdictions allowing defendant to close last (or in even fewer jurisdictions the defense goes first followed by the prosecution with no rebuttals).
• Charge to the jury (in some jurisdictions instructions are given before summations).
• Jury deliberations.
• Verdict.
• Post-trial motions, including defense motion for judgment of acquittal and motion for new trial.
• Sentencing and other consequences for a guilty verdict, based on a presentence report, guidelines, and available victim statements.
• Notice of appeal.

C. Bench Trial

In a bench trial, the judge hears and decides the case. The stages of civil and criminal bench trials are the same as jury trials, except that there clearly is no jury selection, jury instructions, jury deliberation or verdict. Instead, there are findings of fact, conclusions of law, and an order for judgment entered by the judge. See § 2.12.

D. Administrative Hearing

The professional who conducts and decides administrative law hearings is commonly designated as an administrative law judge (ALJ) or an administrative hearing officer. The type of hearing determines its procedures and stages. Many administrative hearings are identical or similar to a bench trial, and commonly reflect the stages of a bench trial (sometimes without opening statements) and conclude with a written opinion by the ALJ that explains the decision. An example of this type of hearing is a workers compensation trial.

Another administrative format involves the administrative judge or hearing officer as an active participant in the presentation of the case. An ALJ may initially question the witnesses before the parties have an opportunity to conduct witness examinations. Closing statements may be made by the parties with a hearing officer asking questions or phrasing issues. This type of hearing is common in situations where the parties may not have attorneys representing them, for example, in reemployment compensation hearings.

Other administrative hearings involve regulatory law. The administrative body may receive evidence in different ways. The role of the hearing officers may be to present evidence as well as to consider it. Parties who are directly affected by a potential regulatory ruling may cross-examine witnesses and may present their own evidence. Parties who are permitted to intervene in a case may present evidence or arguments in a limited role. The staff of the administrative body may act as advocates for specific regulations. Examples of these hearings include utility rate setting proceedings and environmental cases.

E. Arbitration

An arbitrator obviously conducts and decides an arbitration case. The stages of an arbitration process include:

• Filing and serving of the arbitration claim and response.
• Selection of an arbitrator.
• Exchange of discoverable information before the hearing.
• Prehearing and motion procedures and issue resolution.
• The hearing.
• The award.
• Challenge to the award.

Arbitration procedures appear in a set of rules established by the arbitration organization (e.g., Forum Code of Procedure).

Parties agree to use arbitration by including a pre-dispute arbitration clause in their agreement or transaction or by agreeing to arbitration after a dispute arises. A claimant may file a claim with the arbitration administrator (e.g., The Forum or the American Arbitration Association or JAMS) to initiate the arbitration process. The claim consists of a detailed explanation of the facts and law supporting the claim, documents which contain relevant information, and the filing fee. The respondent has to respond in writing with a detailed explanation of defenses and available counter-claims, accompanied by supporting documents. After the parties have completed their submissions, a neutral and experienced arbitrator is selected, usually from a panel of arbitrators. The arbitration forum may appoint an arbitrator or three arbitrators whom the parties may challenge, or may submit a list of potential arbitrators and the parties may remove one or more of the arbitrators.

Parties may exchange discoverable information and may obtain from each other relevant and reliable documents. Discovery may range from a limited number of depositions to discovery methods available under analogous civil procedure rules. The arbitrator resolves any discovery disputes between the parties.

The arbitration organization typically administers the arbitration proceeding. The parties exchange a list of witnesses and exhibits a reasonable time before the hearing. Arbitrators have subpoena power and can require persons to appear at arbitration hearings if the parties request.

Two major types of traditional arbitration proceedings are document hearings and participatory hearings. In a document hearing, the parties submit their case in writing or online via computer to the arbitrator. Parties may submit documents, exhibits, affidavits, memorandums, and any writings or electronically stored information. The arbitrator issues an award after reviewing the submissions. Parties do not appear in person at a document hearing. This hearing is especially useful for document cases decided without oral testimony.

A participatory hearing resembles a bench trial. Parties attend that hearing and present their evidence through witnesses and exhibits. Parties may represent themselves or choose to have an attorney represent them. The stages of a participatory hearing include an opening statement, direct and cross-examinations, and summation. Parties may have witnesses appear in person or by a deposition transcript, testify over the phone, or through video transmission. The arbitrator conducts the hearing and admits all relevant and reliable evidence. The case is concluded when the arbitrator issues the award. Parties may also submit additional information or legal memorandums after the hearing. The decision of an arbitrator in a binding arbitration is final and enforceable.

Two major types of contemporary hearings are online hearings and hybrid hearings. In the first kind, the entire arbitration process is conducted through online exchanges of electronic documents between the arbitrator and the parties. In the second kind, a variety of communication modes may be employed: witnesses and lawyers who are in different locations may appear using video conferencing programs; the arbitrator may ask questions or seek information using emails or a secure computer chat line; documents may be submitted electronically to all the participants; and portions of the process may occur through the internet.

The ongoing development of technological communication methods will provide additional modes for distant hearings conducted via streaming video with evolving software and LLM-enabled platforms. See §1.10(E). Arbitration hearings can be readily adapted to provide participants with this flexibility and accessibility.

Case Book

In order to prepare efficiently, the advocate must develop a systematic approach to each case. This method can be consistent among cases and flexible enough to deal with the particular circumstances of a distinct case. Forms and charts in this and subsequent chapters provide examples of a methodical approach to case preparation. See Form 2.1. An LLM may create or assist with the creation of strategic and tactical plans. Counsel remains ultimately responsible for selecting and implementing case preparation plans. See § 1.1(C).

A. Case Book Design

Preparation for a trial, arbitration, or administrative proceeding includes the creation of a case book. It can be crafted electronically, with or without the assistance of GenAI , or it could be on paper in a notebook, ring binder, or accordion file. A useful case book organizes the material needed for trial or hearing, permits new material to be added during case preparation, establishes an orderly approach to each stage of the case, and permits ready access to case material. See § 1.10[E].

B. Case Book Contents

A case notebook should contain separate files or sections for each stage of a case, including:

• Synopsis of case theory, including legal theories and factual summaries.
• Calendar of deadlines, cut-off dates, and significant times and days.
• ** Schedule of communications** between and among participants involved in the case, included social media contacts.
• List of all lawyers involved and their contact information.
• Discovery and other pretrial plans and orders.
• Applicable substantive law, including cases and statutes.
• Applicable procedural rules, including court rules, arbitration code of procedure, and administrative regulations.
• Pleadings, including a list of admitted allegations.
• Discovery, including discovery responses, witness statements, and deposition testimony that will be introduced as evidence or available for impeachment.
• Summary of documents, electronically stored information, and digital evidence.
• Motions or requests, including pretrial motions, in limine motions, trial motions, and post-trial motions.
• Pretrial or prehearing conference information, including a list of matters to be discussed with the judge, arbitrator, or ALJ.
• Case brief, see § 3.4(F).
• Orders affecting the trial or hearing.
• Objections and applicable rules of evidence and case law decisions to support anticipated evidentiary positions.
• Jury selection, including questions for prospective jurors, the law relating to jury selection, and charts or forms to be used during jury selection.
• List of visual aids to be created and used during opening and summation.
• Opening statement, including an outline and exhibit list.
• Witnesses, including a list of witnesses and the order they will be called.
• Exhibits, including a list of exhibits to be introduced and a chart describing the exhibits, the marking number or letter, the witnesses through whom the exhibits will be introduced, and whether the exhibits have been offered and received.
• Exhibit preparation, detailing where exhibits are located, what needs to be done for their proper introduction and use, a log of their status, and how many duplicates are needed for the judge, arbitrator, ALJ, opposing counsel, jurors, and witnesses.
• Direct examination, including a list of topics or questions for each witness and exhibits that will be used with each witness.
• Cross-examination, including a list of topics or questions for each witness, prior statements from depositions or hearings, and any exhibits to be used.
• Information needed for expert testimony, including expert reports, resumes, and exhibits.
• Statements of judicial, arbitral, or administrative noticed evidence.
• Stipulations of fact and other agreed upon stipulations.
• Resources such as equipment, materials, apps, software, GenAI resources, and supplies needed to present evidence, including video sources, tablet or laptop computer, monitors, document camera, display machine, electronic devices, secure WiFi access, and power sources.
• For a** jury trial, **jury instructions and verdict forms, including proposed general and specific instructions and interrogatory questions to be used.
• For a** bench trial**, proposed findings of fact, conclusions of law, and order.
• For an arbitration or administrative law case, proposed awards or final orders.
• Log of evidence when introduced and recorded as part of transcript or other recording and parts of record for appeal.
• Post-trial or post-hearing submissions.
• Errors, including a list of prejudicial errors occurring during the case to support a motion for a new trial/hearing and for appeal.
• Appealable issues, as well as information supporting or opposing potential issues for appeal.
• Plans to celebrate after the anticipated victory.

The development of a case book is commonly a team effort. Advocates work closely together with colleagues, paralegals, law clerks, LLM resources, experts, and other professionals to prepare for trials and hearings. Attorneys may also join forces with other law firms in representing a client and divide the work because that is what the client prefers or because of the differing talents of the different attorneys. These relationships require the advocate to be a manager and a supervisor and to work cooperatively and collaboratively with others and to engage GenAI assistance when appropriate and reliable. See §1.10(E).

Private vendors and consultants have available efficient and economical software that help create and maintain case notebooks and trial and hearing materials. Technology provides ready to use programs and devices that assist with crafting and maintaining the various components of a case file. Many advocates rely on case support software and LLM systems or retain professional legal consultants to assist them in cases needing such assistance. These programs and litigation support specialists may be used from the very beginning of a case or may be employed as the case progresses. Colleagues, experts, internet searches, websites, GenAI platforms, and related resources can provide information about these sources. See § 1.1[C].

Planning Objectives

The initial planning for a trial or hearing actually begins with the first client interview. Before a trial or hearing gets underway the lawyers have: counseled clients, gathered facts, issued document holds to preserve possible evidence, researched the law, drafted pleadings, conserved documents and electronically stored information, completed discovery, reviewed evidence, and resolved motions, while maintaining a life.

This planning process is critical for several reasons:

• Effective preparation develops successful strategies, tactics, and techniques.
• Planning allows for the creation and completion of a case book.
• Preparation helps identify and anticipate problems that may occur and creates responses to those problems.
• Planning builds confidence and reduces anxiety, uncertainties, and surprises.
• Thorough preparation substantially offsets the disadvantage of inexperience.
• Advocates, experienced colleagues, mentors, and LLM platforms can assist with this process. Again, see §§ 1.1(C) & 1.10[E].

A. Beginning at the End

Begin at the end. The summation is the final destination of the case, and its composition is the initial step of case preparation. The outline and content of the closing argument provides a form and structure for the presentation of the case. The initial summation contains an outline of the overall case presentation along with the theory of the case and the facts, law, inferences, reasons, and arguments that support a winning decision.

This summary forms the basis for the subsequent selection of case theories, what forum or decision maker should be selected, how the opening should be presented, what evidence should be preserved and introduced, and how the case can best be won. If a fact must be established to support a statement made during the closing argument, the attorney can plan to gather and introduce that evidence through direct or cross-examination. If an issue will be part of the summation, information about that issue can be developed. A summation developed early will undoubtedly undergo change as the case progresses.

B. Analysis by Advocate

Analyze the facts and the law objectively. As an advocate, it can be difficult to be objective when reviewing the strengths and weaknesses of a client’s case. An attorney needs to view the case from the perspective of the opponent and assess the strong issues and weak factors from that outlook. And a lawyer must consider the view of the decision maker in assessing the facts, determining the credibility of witnesses, drawing inferences, and accepting arguments. Knowledgeable and skilled coworkers and artificial intelligence resources can provide balanced and objective views and advice.

C. Analyzing the Opponent

Assess the opponent. The assets and liabilities of an opponent affect the presentation of a case. These factors include the: degree of experience, skill level, ability to use modern technology (e.g., reliable GenAI and LLMs), demeanor, reputation, habits, relationship with the tribunal, as well as how the decision maker will perceive and evaluate the lawyer. Information about an opposing lawyer can be obtained from colleagues, attorneys from other firms, websites, internet searches, and individuals who know the lawyer.

D. Analyzing the Decision Maker

Assess the decision maker. As explained previously and as expanded on in subsequent sections, an essential approach to succeeding at advocacy is for the advocate to ascertain and predict the values, norms, beliefs, and principles that will influence a decision maker. This analysis will help in selecting evidence and arguments that reflect these values and resonate with these principles. It will be far easier and much more likely for a decision maker to find for a party if the case presented supports the underlying norms and beliefs of the decision maker.

Familiarity with the strengths and weaknesses of trial and administrative law judges and arbitrators also require an assessment of the process they prefer. These factors include:

• How are proceedings handled?
• What submissions are required or preferred?
• How prompt and decisive are rulings made?
• What are the demands or expectations of advocates?
• What procedures need to be followed or anticipated?
• How familiar is the decision maker with evidence submissions?
• How are the rules of evidence applied?
• How might technological resources (e.g., LLMs and GenAI) help identify evidence and craft arguments?
• What is the educational and professional background of this decision maker?
• What is the dispute resolution experience of the decision maker?
• What is known about this decision maker that may affect case presentation?

Information about a judge, arbitrator, or ALJ may be obtained by talking with colleagues, lawyers, and others who know the professional. It is improper for an attorney to contact a decision maker ex parte about a case. Information can also be obtained from internet and website searches and available listings of cases, data, articles, resumes, education, and background and other public or published information.

Creating a Case Theory

The “theory of the case” provides the decision maker with a succinct statement explaining why a client is entitled to win. This core summary blends the essential facts and legal elements into a credible, coherent, and compelling account that reflects the values of the decision maker. When communicated, the judge, arbitrator, ALJ, or jury will want the client to win.

A case theory can be short and summarized in concise clauses or sentences, or a theory may be stated in a few compact paragraphs. While it is called a theory, the statement melds instructive law with critical facts creating a captivating and powerful explanation. It is an essential part of critical case planning.

A theory of the case is presented and highlighted throughout the trial or hearing. The use of themes, words, phrases, and images contained in the case theory are described in the opening statement, introduced through witnesses and exhibits, and explained in the closing argument. The issues in a case determine available approaches to crafting a theory.

These approaches can be identified and selected from previous successful cases, brainstorming ideas, advice from experienced advocates, and LLM and GenAI platforms. See §§ 1.1(C) & 1.10[E]. Expanding access to court data increases the possibilities. Counsel may be able to identify and locate the case theories that have succeeded before this judge previously.

The following examples demonstrate cohesive case theories.

A. CASE Theory Examples

Criminal Prosecution Example:

This case involves a brutal assault. Polly Pozdol was savagely beaten by that man (pointing to defendant). She had locked him out of her home telling him he was no longer welcome. He left angry and later came back with a plan to beat her. He smashed his way in and pummeled Polly again and again with this bat (holding bat). She suffered severe injuries as shown here (showing photo). She deserves justice, and he deserves to be found guilty of aggravated criminal assault and attempted murder.

Criminal Defense Example:

This is a case of mistaken identity. The lone witness, Michael Lanyard, saw his assailant for a few seconds, in the dark, after a long, tiring day. He mistakenly identified the wrong person.

Tort Case Example:

For the Plaintiff

This case involves the irresponsible conduct of the defendant Country Club that invited a lot of members to a party and then made a lot of money by selling them a lot of drinks. But the club did not give them a lot of room to enjoy themselves. The plaintiff, while dancing to a hired band near a very slippery and very crowded pool area, was uncontrollably pushed by the crowd onto the pool edge and hardscape suffering severe head and back injuries. The Club—that knew about these extremely dangerous conditions—must be held accountable for its blatant irresponsibility.

For the Defendant

This case is about unwise choices and deliberate irresponsibility. The plaintiff, Francis Ouimet, chose to come to a party for club members and decided to drink so many alcoholic drinks that he got drunk. That was his choice. He paid for his alcohol. No one once forced him to drink more. And instead of going home, he chose to stay and found himself a slippery spot to dance on, right next to the pool. His falling was his fault, and not the drinks, not other members, and not the Club.

Products Liability Case Example:

For the Plaintiff

The Garbomatic Company negligently designed, manufactured, and sold the Spinchop garbage disposal to the plaintiff. That disposal was defective when it was designed, defective when it was manufactured, and defective when it was sold. These defects caused the disposal to explode. The metal pieces that exploded out of that Spinchop destroyed Alex Wojcik’s eye. The Garbomatic Company was negligent and is responsible for what happened. It must be held accountable because its defective machine caused Mr. Wojcik’s severe and permanent injuries.

For the Defendant

What happened to Mr. Wojcik is a tragedy. The Spinchop garbage disposal is a safe, well designed, and expertly manufactured consumer product—when it is installed properly and used as intended. The tragedy is that Mr. Wojcik negligently installed the disposal himself and then negligently used it. He knew he was supposed to install the switch within easy reach of the disposal. He did not, knowing better. He also knew he should not start the disposal if there was silverware in it. But he did, knowing better. Unfortunately, he is responsible for his own injuries, not the family owned and local Garbomatic community business.

Discrimination Case Example Explained in Summation:

For the Plaintiff Employee

Judith Kincade had a right to be treated as any other law firm attorney. She was judged by the men at Owen, Voss, Raphael, and Burns not as an attorney, but as a woman attorney. She is being punished for the very same behavior for which male associates have been rewarded. They were assertive, she was abrasive. They showed leadership, she was bossy. They were businesslike, she was cold.

Nobody told her when she first interviewed with the firm that she would be judged not only by how hard she worked, but by how much fun she was to be around. Nobody told her that her failure to smile or her lack of interest in sports would represent an insurmountable obstacle to advancement. And the reason nobody told her was that the men who interviewed her wanted her to work for them. They knew that this was a bright, driven attorney who could be depended upon to work as hard as possible. They knew it would be six or seven years before they would have to tell her she was not going to make partner. They knew what a good deal they had here.

She now rightfully asks for the good deal they promised her. She lost her job because they discriminated against her because she was a woman. There is no doubt that the men at Owen, Voss, Raphael, and Burns are somewhat uncomfortable with Judith Kincade. They may be more comfortable having as partners other men that look and act like themselves.

They hired Judith Kincade, encouraged her to work hard for seven years, and got rid of her without recognition or reward. They now have to pay for their blatant act of gender discrimination as well as for their. . . comfort. We ask you to make them pay.

For the Defendant Employer

Judith Kincade chose to work at the Owen Law Firm. She interviewed with a group of successful, experienced lawyers and decided to join their practice. They allowed her to represent their clients.

What did she have a right to expect? She had a right to expect to be paid fairly, be given the same opportunities as other associates at the firm, and be judged fairly. She was. The firm paid her very generously, provided her with the same opportunities to succeed or fail as other associates, and judged her the way they judged everyone.

What obligations did she have to fulfill? She had responsibilities to work hard, to be productive and bring in business, and to work well with colleagues. She failed in her duties. Her work was reasonable but not up to the standards for partnership; her legal production was good but she did not generate sufficient new clients for the firm; and her demeanor and willingness to work with others was questionable. Ms. Kincade lost her job because she could not do it well. The firm chose others who they felt were much better qualified to be partners. So long as there were legitimate reasons for their decisions, they were wholly within their rights.

Hard work and talent result in women taking their rightful place in all strata of our society. In order for that to happen, they must be permitted to fail. All of us who work for a living are rightfully judged individually. We are subject to the fair and just judgment of others. We get knocked down, get back up, brush ourselves off, get back to work. We learn from our failures. We learn from our mistakes. . . Let Judith Kincade learn the very same thing.

B. Selecting the Best Case Theory

A successful case theory has to work for the client, advocate, and decision maker. The client has to accept the explanation. The lawyer has to be able to rely on a recognizable legal claim or defense and be able to prove the supporting facts. And, the values and principles advanced in the theory need to reflect the norms and beliefs of the decision maker.

As described previously, civil cases typically involve responsible or irresponsible conduct. Tort law calls this conduct negligence, and contract law calls this breach of contract. A common civil case theory revolves around who is more or less accountable or responsible for the accident or breach.

Criminal case theories often involve the elements of the crime supported with the critical facts. The prosecution proclaims the defendant committed the illegal acts based on the evidence. And the defense declares the burden of proof beyond a reasonable doubt has not been sustained by the facts.

Advocates need to ponder, reflect, and creatively design a case theory that provides the best opportunity to win the case. Alternative theories of the case can be crafted and compared. Some will be preferred by the client; others will be the favorite of the advocate. The chosen case theory should be one that will resonate best with the decision maker. In the final analysis, the client and advocate need to accept a workable case theory that will compel the decision maker to ardently want to decide in the party’s favor.

Case Analysis

When planning, the advocate must analyze the:

• Applicable legal claims and defenses,
• Available facts,
• The story that best blends the law and facts,
• Favorable factual issues,
• Persuasive evidence, and
• Effective strategies.

The following sections describe these critical assessments.

A. Selecting Claims and Defenses

A legal claim or defense is based on existing law or a good faith argument extending, modifying, or attempting to change existing law. In many cases, the advocate identifies claims and defenses by applying established law. An example is a breach of contract claim for failure to perform an obligation under a written contract. All jurisdictions recognize this claim. In other cases, an attorney advances a claim or defense that expands or modifies existing law. An example is a breach of an implied covenant of good faith and fair dealing in an oral employment contract arrangement. Only a few jurisdictions recognize this legal doctrine.

The law supporting the legal theory is found wherever laws are found: in statutes, case law, constitutional provisions, rules, and regulations. Elements of a legal theory appear in jury instructions which can be found in a text of standard jury instruction guides (“JIGs”), by researching the substantive law of a jurisdiction, and/or with the assistance of law based LLM platforms.

Legal claims for civil plaintiffs and prosecutors correspond to the legal elements of the claim or crime. For example, the legal theory of an arbitration claimant who brings a breach of contract action may be based on the following elements: the existence of a contract, performance by plaintiff of the contract terms, breach by defendant of the contract, and damages resulting from the breach. The legal theory of a prosecutor who charges the defendant with aggravated assault may be based on these elements: location, intent to do bodily harm, identification, possession of a dangerous weapon, and infliction of severe injuries.

Legal defenses for civil and criminal defendants arise from a number of sources, including the denial of the allegations of the claim or crime, affirmative defenses, counterclaims, third party complaints, and the joinder of related issues and parties. In composing an effective legal claim or defense an advocate should:

• Research all sources of the law,
• Assess the strengths and weaknesses of available doctrines,
• Consider multiple legal claims or defenses,
• Employ claims or defenses supported by favorable jury instructions or conclusions of law,
• Avoid selecting a legal technicality or complex issue as a primary element,
• Compare and contrast potential claims and defenses,
• Select a doctrine readily supported by the facts, and
• Choose a legal theory that resonates with the values, norms, principles, and beliefs of the decision maker.

B. Composing a Factual Summary

In crafting an effective factual summary an advocate should:

• Construct a factual summary that will survive a motion for summary judgment or motion to dismiss,
• Compose a summary supported by credible and persuasive evidence,
• Avoid creating inconsistent alternative factual stories,
• Create a story that the fact finder wants to believe in, and
• Craft a story that resonates with the values, norms, principles, and beliefs of the fact finder*.*

C. Factual Summary Examples

A factual summary consists of a description of what happened and is based upon the evidence that is available and admissible. The story outline consisting of the important facts to be proven and inferences to be drawn is the framework for the summary.

A factual summary for a civil plaintiff in an automobile accident case may consist of the following outline:

• The plaintiff was driving home after an ordinary work day.
• The plaintiff was observant and alert.
• The plaintiff slowed down for a stop sign.
• The plaintiff stopped the car right behind the crosswalk.
• The defendant’s car rear-ended the plaintiff’s car.
• The defendant was distracted and not paying attention.
• The defendant was speeding and failed to stop.
• The plaintiff and the defendant exchanged information.
• The plaintiff suffered injuries, including whiplash.
• The plaintiff paid necessary medical expenses.
• The plaintiff lost income from work for several months.
• The plaintiff endured pain and suffering.

A factual outline for a prosecutor in a theft case may be:

• The victim was walking down the street to go to the store.
• The crime was committed on the corner.
• The lighting conditions were bright.
• The victim was carrying her purse over her right shoulder.
• The defendant grabbed the purse from behind.
• The victim saw the defendant’s face.
• The victim identified defendant in court.
• The defendant stole the purse and ran away.
• The value of the purse and its contents exceeded $1,500.
• The purse and its contents were never recovered.
• The victim gave a description of the defendant to the police.
• The victim identified defendant at a lineup.

D. Crafting a Story

An advocate in effectively crafting a story that weaves together the applicable claims and defenses and relevant facts needs to:

1. Assert Affirmative Positions

A story should reflect affirmative, positive positions. Approaches that are purely defensive or negative are usually insufficient.

2. Employ an Approach Based on Common Sense

Decision makers may ultimately resolve the disputed law and facts in the case based upon their common sense, and it makes sense to focus on this simple approach.

3. Have the Fact Finder Identify with the Story

If the fact finders can identify with a position because others have experienced something similar in their lives or the story could reasonably have happened to others, it can be more persuasive.

4. Use an Approach That Results in a Fair and Just Decision

If a position results in a determination that is unfair or unreasonable, the decision maker is less likely to accept the position.

5. Avoid Employing a Position That Requires the Fact Finder to Make a Difficult Choice

The less difficult a decision that has to be considered, the more likely a favorable decision will be made. If a judge, arbitrator, ALJ, or juror has to choose to believe something or to reach a conclusion that conflicts with their values and norms, it will be difficult for them to do that.

6. Compare and Contrast a Position with That Likely to Be Taken by the Other Party

A decision maker who has to choose between two versions of events or who has to accept one of two explanations will more likely select the more persuasive, believable, and acceptable version. An advocate who can craft a better story, a more likely scenario, and a version that more closely matches the principles and beliefs of the fact finder, has a better chance of success.

7. Test the Approach

The advocate can explain case theories and positions to colleagues, relatives, or friends to discover strengths and weaknesses of the approach and to obtain their favorable reactions or unfavorable responses. The use of LLMs may produce helpful comments and insights. See § 1.1(C). In cases with significant resources, these stories can be presented to a focus group of professional decision makers or a mock jury who will give their reactions and evaluations of the positions.

E. Identifying Factual Issues

Another stage of the planning process is determining what issues the fact finder must decide in a case to render a favorable decision. Successful advocates put themselves in the place of the fact finder to identify the essential issues that must be resolved in a case:

Issue: What story to believe?

Solution:

• Review the evidence to determine disputed critical facts.
• Assess why the fact finder would believe supporting facts.
• Determine why the fact finder would not believe supporting facts and would believe contrary facts.
• List the reasons why the fact finder should not believe unfavorable facts.

For example, a corporation may defend a fraud case by arguing that there was no intent to deceive the claimant nor reliance on the part of the claimant. The attorney for the corporation should review the facts that establish no intent and no reliance to determine why the arbitrator would more likely accept the story presented by the corporation.

Issue: What witness to believe?

Solution:

• List reasons why supportive witnesses are credible.
• List reasons why opposing witnesses are not believable.
• List factors that establish credibility or reduce believability.
• List sources of these factors such as the law, common sense, and biases.

For example, a respondent in an employment case may claim she never made a specific representation or statement as alleged by the claimant. The defense attorney should list all the reasons why the respondent should be believed and all the reasons why opposing witnesses should not be believed to assist the administrative law judge in deciding credibility.

Issue: What favorable inferences can be drawn from the evidence?

Solution:

• Identify all favorable inferences and list reasons why these inferences are reasonable.
• Identify all unfavorable inferences and list reasons why these inferences are unreasonable.
• Review the events and happenings from other perspectives and consider whether other inferences may exist.

For example, a defendant in a products liability case may rely upon circumstantial evidence to prove a plaintiff was at fault. The attorney for the defendant should identify all reasonable circumstantial inferences that can be drawn from the direct evidence to support the defense case.

Issue: How should facts be interpreted and applied to the law?

Solution:

• Create favorable interpretations that support a helpful conclusion.
• Identify unfavorable interpretations to negate the opponent’s case.

For example, a defendant in a criminal case may rely upon the prosecutor’s failure to prove guilt beyond a reasonable doubt as a defense. Counsel for the defendant must present an interpretation and application of the burden “beyond a reasonable doubt” to the fact finder and present sufficient reasons why the facts in the case support “reasonable doubt.”

F. Selecting Evidence

An essential part of the planning process is the identification of evidence that is admissible. Methods available to introduce evidence are:

• Testimony of witnesses, including both lay and expert witnesses. See Chapter 7 on direct examination and Chapter 9 on supportive cross-examination.
• The introduction of exhibits, including real evidence and documents. See Chapter 8.
• Digital evidence, such as electronically stored information and social media communications. See Chapter 4.
• The use of demonstrative evidence, computer generated graphics, and other displays that explain facts and opinions. See §§ 8.7 & 8.8.
• The availability of expert opinions to create and support evidence. See Chapter 10.
• The use of *stipulations *to introduce evidence. See § 3.6(H).
• Admissions made by an adverse party contained in prior statements, confessions, and discovery responses, including interrogatory answers, deposition transcripts, and responses to requests for admissions. See § 3.6(J).
• Former testimony from witnesses who are unavailable for a trial or hearing and who have previously testified at a deposition or hearing. See § 3.6(K).
• Judicial/Arbitral/Administrative Notice taken by a judge, arbitrator, or ALJ. See § 3.6(L).
• Other potential evidence that would be specific and helpful to the case needs to considered and sought.

In addition, much of the information fact finders need to decide a case comes from general knowledge and their life experiences. In every case, the attorneys presume fact finders understand certain information without having to introduce evidence to explain the obvious. For example, in a boating accident, witnesses may testify that a boat was excessively speeding; but there will not be rudimentary information about why a boat floats on the water or how a motor propels it forward, unless there is a controversy regarding these issues. Counsel presume that the fact finder is generally familiar with this basic knowledge.

Accordingly, in every case, many elemental facts are presumed to be understood by the fact finder, and the attorneys will not present information regarding these common life events. To do so would be a waste of time and insult the fact finder. The advocate must make a judgment regarding what facts should be explained by a witness or document and what should be presumed to be known by the fact finder.

Developing a Strategy

A case strategy is the overall, grand plan designed to win the case. The strategy implements the theory of the case and consists of numerous tactics used in presenting the case. Tactics are the individual approaches, techniques, and applications of the strategy. The effective case strategist:

• Views the case as a whole and is able to integrate the various parts and stages of the case.
• Ascertains positions that will most likely influence the decision maker favorably.
• Thinks creatively by brainstorming, generating optional strategies, and evaluating those options.
• Reviews available evidence and considers what else might be discovered.
• Identifies real and demonstrative exhibits that exist or may be created to present facts and opinions.
• Considers visual aids that may be helpful in opening and summation.
• Imagines what modern technology exists including computer software and hardware, electronic and digital devices, internet and web based sources, and AI resources.
• Predicts how the decision maker will decide and fashions a strategy to reflect that process.
• Recognizes weaknesses and considers ways to reduce or eliminate their impact.
• Considers risks attendant with a strategy and attempts to minimize or eliminate those risks.
• *Develops alternative *tactics and techniques as a contingency plan in case the primary strategy fails or falters.
• Lists the toughest decisions the decision maker has to make or the difficult questions that need to be answered and composes favorable and persuasive responses.

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A. Strategic Example

This section demonstrates the implementation of a strategic theory of the case and the use of supporting tactics and techniques. The example involves an automobile accident. The defendant’s theory of the case is that a key eyewitness for the plaintiff misperceived what happened. The strategy is to focus the jury’s attention on this issue during the entire case and to convince them the witness is wrong. This approach is introduced during jury selection and tactically repeated throughout the trial.

Jury Instruction

A preliminary or final jury instruction given by the judge reads:

You have to determine the credibility of the testimony of the witnesses. You must assess their interest or lack of interest in the outcome of the case; their ability to see what they say they saw; their distance from the incident and how clear their line of vision was; their memory; their candor and sincerity; and the reasonableness or unreasonableness of their testimony in light of all the other evidence in the case.

Jury Selection

The defense attorney asks the jurors:

Judge Amanda Anderlee will instruct you regarding credibility of witnesses, that is, their ability to see what they tell you they saw. If she advises you that the ability of eyewitnesses to see something depends upon their distance from the event, the direction that they were looking, and their line of sight, would all of you be able to follow that instruction that Judge Anderlee gives you?

Opening Statement

Defense counsel says:

Members of the Jury, the plaintiff’s case rests on the testimony of an eyewitness who was mistaken about what she saw. The plaintiff will rely extensively on the testimony of Alice Kramden, who the facts will show could not have seen what she said she saw. At the time of the accident, she was more than half a block away from the intersection, initially looking in the opposite direction, and her line of vision was blocked by cars as well as buses.

Cross-Examination

During cross-examination of Alice Kramden the defense attorney asks:

Q: Immediately before the accident, you were at the bus stop?

A: Yes.

Q: The bus stop is located in the middle of the block?

A: Approximately.

Q: You were waiting for a bus?

A: Yep.

Q: You were sitting on the bench at the bus stop?

A: For a while.

Q: You sat there until the bus came to your stop, right?

A: I did.

Q: You were looking down the street for the bus coming to pick you up?

A: Yeah.

Q: The bus was coming from the opposite direction of the intersection where the accident happened?

A: Yes, from the other way.

Q: There were cars parked between where you were sitting and the intersection?

A: There were some cars.

Q: In fact there was a row of cars between where you were and the intersection?

A: There were several cars, maybe more.

Q: Yes. And there was traffic on the street between the bus stop and the intersection?

A: Yeah.

Q: The traffic included cars driving on both sides of the street?

A: Sure.

Q: And these cars were either heading towards or leaving the intersection?

A: Yes.

Q: Now, when you heard the sound of a collision, you turned to look in the direction of the intersection, true?

A: Yes, I did.

Direct Examination

During direct examination of the defendant, the attorney establishes:

Q: Where was the bus stop?

A: In the middle of the block.

Q: In which direction did buses come from to stop there?

A: They came the opposite way from the intersection where the collision took place.

Q: Immediately before the accident, did you see any cars down Main Street?

A: Yes, there were a lot of cars parked on both sides of Main Street and there was traffic moving in both directions.

Summation

The defense attorney concludes:

Members of the Jury, the evidence introduced during this case proves to you that Alice Kramden could not have seen what she says she saw. The facts establish that she is mistaken about what happened. She was too far away to get an accurate look. She was not looking in the direction of the intersection before the accident. She was looking for a bus coming from the opposite direction. When did she first look in the direction of the intersection? After the accident happened. After she heard the noise of the collision. Further, the cars parked along Main Street and the traffic going in both directions along Main Street as shown on this diagram show that she is wrong. This mark, that we have labeled Kramden, is where she told us she was sitting. This mark, labeled Accident, is the accident scene. As I now draw a line between the bus stop bench where Ms. Kramden was sitting and the location in the intersection where the accident occurred, you will conclude that it was not really possible for her to see what she says she saw.

Verdict

Judgment for the defendant . . . hopefully.

B. Strategic Assessment

The advocate can design alternative strategic approaches in an effort to identify and select the most favorable strategy. After crafting a compelling case theory and planning the stages of the case, each phase can be assessed and modified to create a final strategic approach. The various stages of a case permit a variety of opportunities to reinforce a winning conclusion. Counsel can rehearse the various options, assess their impact, and craft a cohesive and convincing overall strategy.

Selecting the Forum

A. Choosing the Decision Maker

In criminal cases, the defendant has a right to a trial by jury, and the vast majority of defendants exercise this right. See § 2.8(B). There are some situations when the defense may prefer a bench trial before a judge and waive the right to a jury. The facts, circumstances, and legal issues of a case may persuade or convince counsel and a defendant that a judge would more likely decide in favor of the defense than a jury.

In many civil cases, the parties have a right to a jury trial, or may waive their right and select a bench trial. In some civil actions, the parties do not have a right to a jury trial and a judge has to conduct the trial. See § 2.8(B). In litigation, if there is a choice, one of the critical decisions counsel and parties must make is whether the case should be tried to a judge or to a jury.

A party may have an opportunity to choose another forum. Many civil claims and defenses may be resolved through arbitration or an administrative proceeding. Many more civil cases are conducted by arbitrators and administrative law judges than are tried before judicial judges or juries.

The parties may have agreed in a pre-dispute clause or may agree in post-dispute clause to submit their controversy to an arbitrator. By law, some issues have to be decided by an administrative law judge. Other civil disputes may be resolved in court, or in arbitration, or in an administrative proceeding.

If a choice exists, there are a number of factors to consider in determining the most appropriate or favorable forum for a civil dispute:

1. The Nature of the Factual Issue

A case primarily involving emotional or empathetic issues or subjective damages may be better tried before a jury than a professional decision maker because judges, arbitrators, and ALJs may be less likely to be swayed by these factors. Conversely, a party opposing these kinds of issues may prefer a non-jury forum.

2. The Type of Client

The personality and nature of a client may be very appealing to a jury of peers while a judge or ALJ may not be affected by such personal appeal. Also, an experienced decision maker may be less affected than a jury by the traits of a client. For example, while jurors may be unfairly predisposed to favor an individual opposed by a large corporation, an arbitrator may not be unduly influenced by this factor.

3. The Nature of the Legal Theory

If the case involves a legal issue that presents a legal technicality, a professional decision maker rather than a jury may be more inclined to provide a recovery. Jurors may be inclined to overlook a point of law if it results in what appears to be an unfair or unjust result.

4. The Complexity of the Case

A jury may or may not be able to understand and decide a complex case. A judicial judge may not have the background or experience to understand a complicated case as well as an experienced arbitrator or a specialized administrative law judge. Other cases may involve extremely difficult factual or legal issues that may take a long time to try if presented to a jury, and may be much more readily presented to and decided by a professional decision maker who has the requisite expertise.

5. The Efficient Presentation of the Case

Trial procedures are lengthier in a jury trial and the rules of evidence excluding or restricting testimony or exhibits are more strictly enforced. See § 3.11. These factors may suggest that a bench trial, arbitration, or administrative hearing is preferable because it is more efficient.

6. The Effectiveness of the Advocate

Whether the advocate or opposing lawyer will be more effective before certain decision makers may influence the decision. An ALJ or arbitrator may be swayed one way or the other by the reputation and talent of a professional than a judge or jurors who do not know the lawyer.

7. The Location of the Case and Forum

It may be advantageous to try a case in a local rather than a distant location. A neighboring party may be favored in a community, and a foreign party may be at a disadvantage. Or the events may make it difficult to obtain a fair and impartial outcome in a locale.

8. Types of Evidence and Manner of Presentation

Both the content of the evidence and the alternative ways it can be introduced may affect the choice of the forum. Documentary evidence that appears in lengthy, difficult to understand documents may be better understood by a professional. Conflicting testimonial evidence that involves the credibility of victims may be better decided by jurors.

9. Preferences of the Client

The client’s wishes should also be considered by the advocate. The client may prefer a decision reached by a jury, or may prefer an experienced arbitrator or ALJ who can decide the case more quickly and affordably.

10. The Type of Decision Maker

If the judge assigned to a case may be favorably disposed, a jury trial need not be demanded or may be waived. Parties can select an arbitrator mutually acceptable to them. Administrative law judges may not be able to be effectively challenged and removed.

11. Information About Outcomes

Data may be available revealing that a favorable result may be more likely to occur before a specific tribunal. Information regarding winning percentages or favorable decisions that emanate from certain forums may support the choice for a more promising and advantageous outcome.

12. Nature of Potential Appeal

Appellate courts are much less likely to overturn the factual findings of a jury than those of a trial judge because the standards of review are higher in a jury case. See § 12.9(A). Decisions by administrative law judges may be given due deference by appellate judges. Awards issued by arbitrators are reviewable within strict limits by a judge or appellate panel.

13. Familiarity with Counsel

There may be situations where, either in a social or professional context, an attorney and a professional decision maker are favorably acquainted with each other. While this in no way should affect the decision maker’s objectivity in hearing the case, it may give this attorney an advantage over opposing counsel unknown by the judge, arbitrator, or ALJ.

14. Timing of Decision

In litigation, an attorney may initially demand a jury trial regardless of what the previous factors suggest. This demand can later be waived, if, as the case develops, it appears that a bench trial would be better. The demand for a jury trial may increase the chances of an early favorable settlement with an opposing side who may have more to fear from an unpredictable jury verdict. The timing of the waiver of the jury trial may affect what judge is assigned to hear the case. If an attorney would like to appear before a certain judge or would like to avoid a specific judge, the timing of the waiver decision may be instrumental in achieving that goal.

B. Jury Trial

In federal court cases, the Seventh Amendment guarantees a jury trial in all actions triable to a jury at common law, and Federal Rule of Civil Procedure 38 preserves this right. Similar state constitutional provisions and rules guarantee the same right in state cases. Criminal cases that may not require a jury are those in which the possible penalty is not incarceration but only a fine. Civil cases that do not require a jury are actions that are primarily equitable in nature, such as cases that do not involve money damages but seek injunctive relief or actions involving statutory claims that by law have to be decided by a judge.

Jurisdictions vary on how a party may demand a jury trial. In some courts, a party need not do anything affirmatively to obtain a jury. The filing of the action is sufficient to preserve the right to a jury trial. In other jurisdictions, a party must formally request a trial by jury. In these jurisdictions, a rule or statute specifies how and when a party must notify the court and the opposing party of a demand for a jury trial. These provisions typically require a party to include a demand for a jury in a pleading or to submit a timely separate jury request.

Federal Rule of Civil Procedure 38(b) states that a party may make a jury demand at any time after commencement of an action and within 14 days after the close of the pleadings. In federal courts and in state courts that impose a deadline for the jury demand, a party waives the right to a jury trial unless the party timely complies with the applicable rule. In these jurisdictions, it is common for the party who wants a jury trial to include such a request in the pleading submitted by that party. If the time period has lapsed, a party may move the court for leave to have the case tried before a jury, which the judge has discretion to grant. Once a jury demand is made by either party, the case will be tried to a jury unless the parties agree to a bench trial, or unless a judge orders a bench trial based on a motion to strike the jury demand brought by an opposing party or the court. See, e.g., Fed. R. Civ. P. 39(a).

C. Advisory Jury

A judge may empanel an advisory jury to render a verdict in cases that are not triable to a jury by right. See, e.g., Fed. R. Civ. P. 39(c). An advisory jury may be used whenever the court believes that jurors can assist the court in finding the facts. The jury verdict is purely advisory, and the judge may ignore it or use it as a guide in making findings.

Although not often used, advisory juries may be empaneled in cases where the principal dispute centers on the credibility of witnesses, or where some issues are to be decided by a jury and other issues by the judge. For example, if the plaintiff’s case has two causes of action, one of which is a common law claim triable by right to a jury and the other is a statutory claim triable only before a judge, the judge may have the jurors deliberate and render an advisory verdict on the statutory claim along with their verdict on the common law claim.

D. Role of Judge and Jury

In a jury trial, the judge administers the trial, manages the attorneys and the participants, rules on motions and the admissibility of evidence, instructs the jury regarding the law, issues orders, and enters judgments. In a non-jury trial, the judge is the finder of fact as well. Judges usually maintain notes or minutes of the trial proceedings. These may become part of the official record and may also be used by the judge in making rulings.

In a jury trial, the jury is the fact finder. The jurors apply the law given by the judge to the facts. The jurors must deliberate fairly and impartially to reach a verdict and determine liability and damages, guilt or innocence.

In many jurisdictions, jurors are permitted to ask questions by submitting questions to the judge who reviews, approves, and asks the questions. This role changes the function of the jurors from being purely passive to being active in seeking information. Questions that may be appropriately asked are clarification questions seeking admissible evidence. See § 3.7(D).

E. Role of Administrative Judge

The power and authority of an administrative law judge depends upon the type of administrative hearing. Some administrative judges act similarly to judges in a bench trial. Other ALJs or administrative hearing officers have a broader or more restrictive role depending upon the statute and rule empowering them to decide a case. Advocates may object to judges and officers exceeding their power and applicable authority. See § 2.2(D).

F. Role of Arbitrator

Arbitrators have the power provided them by the agreement of the parties, the rules of the arbitration organization, and the law. An arbitrator commonly has the same power and authority that a judge has in a bench trial. The arbitrator has broad discretion to conduct and control the hearing and usually has the power to issue any legal or equitable relief to which a party is entitled. The arbitration agreement may expand or restrict the scope of the role of the arbitrator. See § 2.2(E).

G. Roles of Court Personnel

Court personnel assist with the operations of a case. Judicial staff include administrators, clerks, bailiffs, and court reporters. Some of these functions may be combined so that one person serves multiple roles.

Administrative personnel perform scheduling and management duties. The court clerk performs clerical roles and administers oaths. A law clerk (an attorney or a law student) researches the law and assists the judge in drafting memoranda and orders. The bailiff or court attendant (often a law enforcement officer) may be responsible for enforcing order in the courtroom and for tending to the jury. A court reporter marks exhibits and records the proceedings with a stenograph machine or an audio recording system or a computerized transcription system.

Judicial personnel work closely with the judge and some are available to answer questions from lawyers regarding the judge’s procedures and preferences. Attorneys should familiarize themselves with the processes preferred by the court personnel, flexibly adapt to these procedures, and suggest alternative actions if the best interests of the client are not advanced by the routine procedures. These personnel deserve to be treated with respect, and advocates do well to remember to always interact with them professionally and respectfully.

H. Role of Administrators

Arbitration organizations commonly administer arbitration procedures by filing documents, assigning arbitrators, scheduling the hearing, and issuing the final award. Arbitrations can be filed electronically through online transmissions or through postal methods. Arbitration organizations commonly have a website with filing and communication capabilities. (e.g., www.​adrforum.​com).

Administrative law personnel process the filing, scheduling, and completion of a case and work with the administrative law judges in handling a case. Some administrative proceedings are handled by hearing officers through telephone, video, and computer transmissions.

Jury Instructions

For jury trials, an essential part of the planning process involves the identification and preparation of jury instructions and verdict forms. Jury instructions are explanations of the law of the case that the judge reads or explains to the jury during or at the end of the trial. Judges may also provide the jurors with a written copy of the instructions during the trial or for use during deliberations.

The instructions describe trial procedures and the legal elements of claims or defenses that need to be proven. Verdict forms contain questions (often called interrogatories) which the jurors must answer or statements they must complete. These forms contain the conclusions the jurors reach during their deliberations.

It is critical that instructions be considered early during trial preparation, even though they need not be submitted until the trial. The instructions contain the legal elements that support the legal theories of the case and help define the relevancy of admitted evidence. A legal claim or defense can only be advanced in the case if it is contained in the jury instruction the court gives to the jury. The jurors only consider the elements of the controlling law submitted to them through instructions.

A. Right to Jury Instructions

A party has a right to an instruction if evidence has been introduced to support the instruction and if the instruction correctly states the applicable law. The advocate wants jury instructions to explain the elements of the law involved, the issues to be decided, and related matters. The primary goal in composing and submitting jury instructions is to have the judge charge the jury regarding a legal claim or defense which, when decided by the jurors, supports a verdict in a party’s favor.

B. Sources of Instructions

Instructions, also called charges, must be based upon the law of the jurisdiction. Case law, statutes, rules, and other legal authorities provide the basis for the content of the instructions. Nearly all jurisdictions have jury instruction guides, “JIGs” or “pattern instructions,” which contain generally recognized and accepted charges. Many instructions and verdict forms have been approved by appellate courts or adopted by civil or criminal procedure committees composed of judges and trial lawyers.

In determining the applicable instructions and forms, an initial source to consider is the set of standard jury instruction guides used in a jurisdiction. The table of contents or index of the applicable JIG book or online source reveals what instructions are available. Pattern instructions are readily accessible for many common civil and criminal cases. Other sources will have to be researched if there are unsatisfactory JIGs or no pattern instructions are available. Another source is the applicable law of the jurisdiction contained in cases, statutes, rules, regulations, or constitutional provisions. A further source is jury instructions used in previous cases in that jurisdiction. A final source may be the analogous law or jury instructions from related cases.

Instructions and verdict forms that appear as standard instructions ordinarily reflect current and correct law, but not always. The accuracy and currency of each charge should be verified. Most JIG sources and pattern instructions are updated periodically. If not, further research may be necessary to confirm that the proposed charge is a proper and current instruction or verdict form. A law based LLM can assist with the process of identifying and composing proper instructions. See § 1.1[C].

The instructions submitted to the judge must be complete and correct to avoid creating an appealable and reversible issue. The failure to give necessary instructions or the giving of incomplete or erroneous instructions provides grounds in support of a motion for a new trial or a reversal of a verdict on appeal.

C. Instructions

There are several types of instructions a judge gives to the jury during a trial to explain trial procedures, describe the duties of the jurors, and explain the law applicable to the case. These include preliminary instructions, periodic instructions, cautionary instructions, curative instructions, and final instructions.

1. Preliminary Procedural Instructions

These are instructions the judge gives the jury at the beginning of the case. Preliminary instructions explain to the jury their responsibilities during the trial and may also include an explanation of the law applicable to the case. These instructions may be similar or identical to some of the final instructions. Some judges have standard preliminary instructions that they give. The trial lawyer may also ask the judge to give some different or additional relevant instructions.

Example:

Members of the Jury, now that you have been sworn, I will give you some preliminary instructions to guide you through the trial.

First, you must not discuss the case among yourselves or with anyone else. At the end of the trial, you’ll have as much time as you need to discuss the case, but not during the trial.

Second, do not read or listen to anything regarding this case in any way. If anyone should try to talk to you about it, bring it to the court’s attention promptly. And you are not to text or email or use any social networks to discuss this case with anyone.

Third, don’t do any research or make any investigation about the case on your own. This means you are not to use your smart phone, tablet, laptop, computer, or any other device to contact others or to search websites, blogs, chatbots, or any internet or artificial intelligence source for general or specific information about any issue or person in this case.

Finally, do not form any opinion until all the evidence is in. Keep an open mind until your deliberations at the end of this trial.

It will be your duty to find the facts from the evidence presented. You, and you alone, determine the facts. You will then have to apply those facts to the law as will be explained to you.

2. Preliminary Substantive Instructions

At the beginning of the trial, judges may also inform the jury regarding the elements of the claims or defenses that will be presented and the applicable substantive law. These instructions are identical to what will be explained at the end of case.

3. Periodic Instructions

In some trials, particularly those where the issues are complex or unusual, jurors may be assisted by instructions concerning the case or the law given to them periodically during the trial. An attorney who prefers these periodic instructions to be given should explain this need to the judge, because the judge may not consider the use of these instructions necessary or helpful. A periodic instruction is usually identical to a final instruction, which may be repeated during the final charge in the case.

4. Cautionary Instructions

Cautionary instructions are given before recesses and adjournments during the trial to remind the jurors to conduct themselves properly.

Example:

Remember that over the break you are not to talk to anyone including each other about this case. And you are not to use your smart phone to contact anyone to discuss this case. Also, you cannot use any computer or tablet, or any internet or website access device, to research any information about any issue or any party or witness in this case.

5. Curative Instructions

During the trial, the judge gives curative instructions after an inappropriate event has occurred, after some inadmissible evidence has been improperly referred to, or after trial misconduct.

Example:

I instruct the jury to disregard the last comment about the defendant attending a political event. That is totally irrelevant to this case and should not be considered by you in any way.

6. Final Instructions

There are two categories of final instructions: general instructions and specific instructions. General instructions are those charges that apply to all or most cases and involve the conduct of the trial, such as instructions regarding the role of the jurors, burden of proof, circumstantial evidence, and the credibility of witnesses. Specific instructions include those instructions that contain the legal elements of the claims and defenses applicable to a specific case. General instructions are typically found in pattern JIGs. Specific instructions may also be found in standard JIGs for common cases. See § 12.2.

Planning and Submitting

Jury Instructions

A. Planning the Charge

Jury instructions must be selected and drafted to meet several goals. Instructions must:

• Reflect the legal issues and the evidentiary facts.
• Be clear, correct, understandable, and accurate.
• Withstand legal attacks.
• Comply with ethical rules.
• Be drafted as a complete set.

1. Reflect Legal Issues and Evidentiary Facts

The initial draft of jury instructions must contain the elements reflected in the legal claims and defenses. See § 2.9(B). These instructions may be modified as the trial preparation develops and as the trial progresses. Final preparations for trial may require revisions in the selection and wording of the instructions. Submitted instructions may also necessitate revisions, and so might discussions with the judge regarding what the judge thinks to be proper or improper.

Jury instructions must also reflect the trial testimony and documentary exhibits. Instructions must be consistent with the evidence presented during trial so that jurors can determine whether the facts support the legal theories. All the evidence should be reviewed to make certain that instructions covering all important facts are submitted.

2. Be Clear, Correct, Understandable, and Accurate

Several guidelines should be followed in drafting and submitting instructions that will be accepted and used by the judge:

A. The instructions must be legally correct and complete. Only instructions that accurately reflect the law should be submitted.

B. Instructions should be clear and comprehensible. Instructions must be drafted so that jurors can understand them. Some standard jury instructions drafted by lawyers and judges erroneously presume that jurors are able to understand certain legal terms. A standard instruction must be reviewed to determine whether it is easily understood, and original instructions need to be clearly drafted.

C. Jury instructions should be composed following principles of effective writing. Some of the more important principles include the use of: (1) simple sentences instead of complex clauses, (2) commonly used words instead of confusing legal terms, (3) active voice instead of passive voice, (4) concise and not verbose language, and (5) affirmative statements rather than negative constructions. An instruction likely to be accepted by a judge is one that includes legal terms that appear in standard instructions and adds a correct explanation of the terms using common language understandable to the jurors. This reduces chances the judge will reject the proposed instruction because required concepts and phrases are excluded.

D. Instructions should be balanced and not biased in favor of one party. While an instruction should support a party’s case theory, it should not do so in an overtly biased way. Judges must give objective and impartial jury instructions, not favoring one side or prejudicing the other. However, if there is a choice available between reasonably supportive and impartial words, then the words that most favor a client’s position ought to be selected for proposed instructions.

Advocates submit instructions to support their client’s case. The use of standard instructions may be so firmly entrenched in a jurisdiction that no proposed change will be acceptable to a judge. Other judges may accept changes that make the instruction more accurate and more understandable. The extent to which an attorney may submit a modified pattern instruction or compose an original instruction depends upon the use of standard instructions in a jurisdiction and how effectively the attorney has edited or created an instruction. As previously noted, LLMs can assist in suggesting and drafting correct instructions based on the law, with counsel making the final selections to be submitted to the judge. See § 1.10(E).

3. Withstand Legal Challenges

Opposing counsel may challenge proposed instructions by objecting to their use or the inclusion of specific words or phrases. Opposing counsel may argue that their proposed instructions ought to be used by claiming that no evidence supports the use of another instruction or by arguing that any other instruction could be inaccurate or incomplete. The trial judge carefully reviews the submitted instructions to assure they are proper. A ground for reversible error that may be raised in an appeal involves improper jury instructions. Appellate judges review the instructions and decide whether the instructions correctly explained the law to the jurors. By following the suggestions in this section, instructions should be submitted that will survive these challenges.

4. Comply with Ethical Rules

Ethical rules as well as rules of civil procedure prohibit an attorney from knowingly making a false statement of law to the court and from failing to disclose controlling legal authority adverse to the attorney’s position. These rules also require that statements of law be based on existing law or a good faith extension, modification, or reversal of the existing law. Instructions must be drafted to comply with these ethical regulations. An attorney who fails to comply with these rules has not only committed an unethical act but may also be sanctioned by the court.

5. Constitute a Complete Set of Instructions

Jury instructions cover all legal and factual issues of the case and must be complete and comprehensive. Each individual instruction is part of a set of instructions, and the interrelationship of these jury instructions affects their comprehensibility. A series of instructions that are overly lengthy or presented in an unstructured, disorganized manner may confuse and overwhelm the jury. A collection of instructions that is too short may omit necessary explanations. The goal is to submit a balanced set with a structure and organization that enhances their meaning.

For example, an accident case may include the following instructions:

• Explanation of duties of jurors,
• Description of claims and defenses,
• Burden of proof,
• Meaning of preponderance of evidence,
• Direct and circumstantial evidence,
• Credibility of witnesses,
• Rulings and objections to evidence,
• Definition of negligence,
• Definition of proximate cause,
• Definition of ordinary care,
• Explanation of comparative fault,
• Violation of applicable statute, ordinance, or regulation,
• Explanation of measure of damages,
• Recoverable injuries,
• Medical expenses,
• Loss of income,
• Pain and suffering,
• Explanation of verdict form,
• Selecting foreperson, and
• Concluding instructions.

B. Submitting Instructions

Instructions must be submitted in accord with the applicable rules of procedure which usually require that requests for instructions be submitted to the court no later than or before the close of evidence. Many judges require or expect instructions to be provided at the start of the trial to help them understand the issues to be tried. Other courts may accept instructions during the trial at a reasonable time before the charge to the jury. Early preparation by the trial lawyer will ensure that instructions are ready at whatever point the judge requests them. As a practical matter, because substantive instructions contain the elements of the relevant claims or defenses, a seasoned trial attorney reviews appropriate instructions at the beginning of the case and uses them to craft the theory of the case and the initial closing argument outline.

Instructions must ordinarily be provided to the court and opposing counsel in writing or electronically in a file or as an email attachment. See, e.g., Fed. R. Crim. P. 30. Oral requests not made part of the record are ineffective, but some jurisdictions do allow recorded oral requests in place of printed submissions. Some courts require or expect a memorandum of law to be submitted in support of significant instructions. It may be advisable, regardless of the rules or practice of the court, to submit a supporting memo to increase the chances the judge will accept the use of instructions that are not often used.

There are a variety of ways to submit instructions, depending upon the preference of the judge and the type of instruction. The preferred way to submit important or specific instructions is to submit two sets of instructions. One set includes the text of each instruction on a separately numbered document with a reference to the source or citation for the instruction. The reference to the authority can include an indication whether the instruction is a direct quote from the source or has been edited or revised to reflect the facts and applicable law of the case. The second set of instructions includes just the text of the instruction with no number or authority. This is a copy the judge can use and give directly to the jury.

General instructions that appear in the JIG book or website or pattern instructions may be submitted by providing the judge with a list of the respective numbers or citations from the pattern JIGs. Depending upon the judge and the jurisdiction, this method of submission is often used in simple cases or short trials. The advocate should ask the judge if this method is acceptable or if the judge prefers a set of proposed instructions in print, in an electronic file, or in an email.

Regardless of how instructions are submitted, trial counsel must make certain that the judge clearly understands what instructions have been proposed and that there is a record of the requested instructions. The record must include the proposed instructions submitted by an attorney to preserve any issues for appeal. If a judge fails or refuses to give proper instructions tendered by a lawyer, that error may be grounds for a new trial.

Verdict Forms

A. Types of Verdict Forms

In jury trials, jurors are given a verdict form to complete and sign. It contains the jury’s decision. There are three common types of verdict forms.

1. General Verdict

A jury may return a general verdict form, which is signed by the foreperson or by the jurors. In this form, the jury simply finds for or against a party.

Example:

We, the Jury, find for the plaintiff in the sum of $_______.

or

We, the Jury, find the defendant _______ (guilty or not guilty).

2. Special Verdict

The judge may submit a special verdict form to a jury that requires the jurors to answer specific questions and make findings of fact on critical issues. This form ensures that the jury does not ignore the controlling law, and also makes clear the jury’s decision on specific issues.

Example (Product Liability Case):

(1) Was the product in a defective condition and unreasonably dangerous because of the manufacturing process used to manufacture the product?

Answer: Yes_______ No _______

(2) If your answer to Question No. 1 was “Yes”, then answer this question: Was the defective condition caused by the manufacture of the product a direct cause of the plaintiff’s injury?

Answer: Yes_______ No_______

(3) If your answer to Question No. 2 was “Yes”, then answer this question: Was the defendant manufacturer negligent in the manufacture of the product?

Answer: Yes_______ No_______

(4) If your answer to Question No. 3 was “Yes”, then answer this question: Was such negligence a direct cause of the plaintiff’s injury?

Answer: Yes_______ No_______

(5) Did the plaintiff fail to exercise reasonable care for her own safety?

Answer: Yes_______ No_______

(6) If your answer to Question No. 5 was “Yes”, then answer this question: Was the plaintiff’s failure to exercise reasonable care a direct cause of her injury?

Answer: Yes_______ No_______

(7) If you answered “Yes” to Question No. 6, and you also answered “Yes” to Questions Nos. 2 or 4, then answer this question:

Taking all of the fault that directly caused the plaintiff’s injury as 100%, what percentage of fault do you attribute to:

3. General Verdict Form with Interrogatories

The court may submit a general verdict form with written interrogatories. This form combines both a general verdict and special interrogatories. When this type of form is used, the answers to the interrogatories must be consistent with the general verdict. If they are not consistent, the specific answers usually prevail over the inconsistent general verdict. Similar to the special verdict, this form ensures jurors follow the applicable law.

B. Proposing a Verdict Form

The type of case and nature of the issues determine which verdict form should be used. In criminal cases, the general verdict form is usually used. In personal injury cases, special interrogatories are typically used. The applicable rules or statutes in a jurisdiction may mandate what form of verdict is to be used.

The general verdict form is simple and only requires the jury to reach a general conclusion. A special verdict requires the jury to decide the facts and requires the judge to apply the law to the facts and enter a judgment. The special verdict form obliges jurors to consider and discuss all the important issues in a case. The use of a general verdict form with written interrogatories combines both the advantages and disadvantages of the two verdict forms. A general verdict form allows jurors to decide a case for whatever reason they wish and, unlike special interrogatories, does not focus the jury’s attention on specific factual issues. Special interrogatories, on the other hand, may be improperly or inconsistently answered, and the judge may not be able to readily understand the basis for the jury’s determination.

Procedural rules, case law, or statutes establish guidelines or mandates for the use of verdict forms. Federal Rule of Civil Procedure 49 and similar state rules regulate the use of special verdicts and interrogatories. Usually, during closing argument, counsel can suggest to the jury how they should complete the verdict form. Ordinarily, counsel may also advise the jury of the effect of the answers to special interrogatories. In some jurisdictions and cases, however, counsel may be prohibited from so commenting. These considerations help counsel determine what type of verdict form counsel should propose to be used. Again, LLMs can assist with drafting and editing verdict forms, with counsel determining the final content to be submitted to the court. See § 1.10(E).

Final Decisions

A. Judgement, Order, and Award

In a bench trial, the final decision of a judge results in the issuance of an enforceable judgment. See §§ 12.6 & 12.8. In an arbitration, an arbitrator issues a final award. See § 12.2(F). In administrative law cases, the decision of an ALJ may be designated as an order or a judgment, depending upon the type of case and applicable procedural rules. See § 12.2(E). These pronouncements may be supported by findings of fact and conclusions of law or by short or narrative explanations.

B. Findings of Fact and Conclusions of Law

In a bench trial, the judge must issue findings of fact, conclusions of law, and an order. In arbitrations, the arbitrator may support an award with findings and conclusions or reasoned explanations. In administrative cases, an ALJ may provide a detailed order.

Advocates may submit proposed findings and conclusions in a case. See § 3.11(E). The proposed findings should cover all the important supportive facts admitted as evidence. The proposed conclusions should cover all elements of the legal claims or defenses. The proposed award or order should reflect the favored result. The guidelines used in drafting proposed findings and conclusions are similar to those followed in drafting jury instructions, as explained previously.

Example:

FINDINGS OF FACT

1. The following events occurred on February 2 on Grand Avenue, St. Paul, Minnesota.

2. At about noon, plaintiff walked along Grand Avenue. She approached defendant from behind. Defendant was, at that time, carrying a round bakery product with sweet toppings, commonly known as a bagel with cream cheese and jelly.

3. The bagel was made of dense, chewy dough with a browned, crispy exterior.

4. As plaintiff passed defendant on the sidewalk, defendant swung around abruptly and unintentionally hit plaintiff in the face with the bakery product.

5. Plaintiff suffered damage as a result of the incident.

CONCLUSIONS OF LAW

1. The statute that applies in this case is Minnesota Statute Section 112.02, which provides:

Laws, Section 112.02 Assault with a Roll

Whoever hits another person with a sweet roll shall be liable to the other person for actual and consequential damages.

2. Defendant did not hit plaintiff, within the meaning of Section 112.02, because the contact between the two was not intentional.

3. The bakery product involved in this incident was not a sweet roll within the meaning of Section 112.02 because it was not made of soft, flaky dough.

4. Defendant is not liable to plaintiff for damages and is entitled to an order dismissing plaintiff’s complaint.

ORDER

1. This court orders that judgment be entered for defendant.

2. The parties are to bear their own costs.

Sandra Thurgood Sotomayor

Judge

Burden of Proof and Presumptions

For each issue within a case, one of the parties has the burden of proof regarding that issue. The concept, “burden of proof,” actually includes two different burdens: the burden of production and the burden of persuasion. The burdens of proof, production, and persuasion can be confusing to distinguish as well as nettlesome. They can be crucially important in determining the outcome of a case, and are well worth the effort to decipher and understand.

A. Burden of Production

The term burden of production requires that a party produce sufficient evidence so that a reasonable person could find on behalf of that party. This burden is also known as the burden of going forward. In legal terms, the burden of production requires a party to introduce evidence of sufficient quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might find in favor of that party.

An opposing party challenges the burden of production by bringing a motion for judgment as a matter of law in a jury trial or a motion to dismiss in a bench trial, arbitration, or administrative hearing. These motions require the judge, arbitrator, or ALJ to evaluate the evidence and determine whether the evidence is sufficient to meet the burden of production. If the evidence is sufficient, the motion is denied and the case proceeds. If the evidence is insufficient, the motion is granted. See § 3.8(C)(7).

B. Burden of Persuasion

The burden of persuasion requires a party to introduce evidence sufficient to win. This burden is also known as the risk of non-persuasion. The fact finder weighs this evidence and determines whether the party is entitled to a favorable decision. In legal terms, a party must introduce evidence that convinces the fact finder that the elements of the claim or defense have been proven. This burden, in effect, follows the burden of production. If a party meets the production burden, then the fact finder needs to determine whether a party has met the burden of persuasion. If so, the party wins on that issue. If not, the party loses on that claim or defense.

C. Types of Burdens of Proof

There are three common degrees of burdens of proof:

1. Preponderance of the Evidence

This burden applies in civil cases. The burden requires a party, usually the plaintiff or claimant, to prove that it is more probable than not that the party’s facts are true. In percentage terms, a party carries this burden and wins the case if its facts exceed 50% probability.

2. Clear and Convincing

This is a standard of proof that applies to some issues in some civil cases that involve a higher burden of proof than that imposed by the preponderance standard. For example, issues of fraud are commonly required to be proven by clear and convincing evidence. To satisfy this burden, a party must establish proof greater than the preponderance of evidence. The exact percentage of proof required is unclear, but something more than 50% and less than proof beyond a reasonable doubt is required.

3. Proof Beyond a Reasonable Doubt

This burden applies to criminal cases. It is the highest of the three burdens of proof. What is a “reasonable doubt” is left to the determination of the fact finder. It is not the absence of all doubt, and not the existence of some doubt. The fact finder decides what is “reasonable” after discerning the facts of the case. In percentage terms, it is a high percentage, but is not usually expressed in a number.

D. Allocation of Burdens

The burden of production and the burden of persuasion for each issue in a case must be allocated between the plaintiff/claimant and the defendant/‌respondent. These two burdens can be allocated in four ways:

• The plaintiff/claimant has both the burden of production and the burden of persuasion.
• The plaintiff/claimant has the burden of production and the defense has the burden of persuasion.
• The defense has the burden of production and the plaintiff/‌claimant has the burden of persuasion.
• The defendant/respondent has both.

The law of a jurisdiction regarding an issue determines how the burdens are allocated. In many civil cases, the plaintiff/claimant has both the burden of production and the burden of persuasion. In civil cases involving a counterclaim or an affirmative defense, the defendant/‌respondent has both burdens. In criminal cases, the prosecution has both burdens. In criminal cases involving an affirmative defense, the defendant may have the burden of production. The allocation of the burden of persuasion and the burden of production is critical in determining which party prevails.

E. Practical Impact of Burdens

The legal concepts of burden of proof may be more significant to lawyers and professional decision makers than to jurors. In civil cases, regardless of which party has the burden, the jurors want to find on behalf of a party based on truth and justice and not merely based upon percentage probabilities. In criminal cases, the impact of the burden on jurors may be greater because they have to decide a person’s liberty and not just a financial fate, and they want to be sure as they can to make the right decision.

Civil attorneys who argue to the jury that they will prove what “probably” happened may reduce the persuasive impact of their position. See § 1.6. This is particularly true in civil cases where the notion is that a party wins even if jurors are only 50.1% sure of what happened. While this may make sense to lawyers and judges, it often leaves some jurors befuddled. Many jurors take the approach that they ought to be able to figure out what happened and which party is rightfully, and not just likely, entitled to a verdict. In close cases or where both parties are substantially at fault, the preponderance burden will favor the party who does not have the burden as jurors can reasonably conclude the probability burden has not been met.

Judges, arbitrators, and ALJs may be more influenced by the effect of the burden. In cases where both parties have presented equally compelling cases, the professional decision maker may decide the case based on which party has the burden of proof. If everything else is equal, the party with the burden will lose. It is the law that the party with the burden has to produce more compelling evidence to win. This concept is more easily understood and accepted by professional decision makers, which is why they may more likely produce a fair result in various cases than jurors could. Some juries will be influenced by other factors beyond the burdens.

The burden of proof has an effective application in criminal cases where the system of justice requires a prosecutor to prove guilt beyond a reasonable doubt and allows the defendant to rely on a presumption of innocence. A criminal defense attorney can explain to the jurors that their role is to render a not guilty verdict if they have a reasonable doubt. Many jurors will nonetheless be skeptical if a defendant does not testify or presents no defense. In these cases the common sense perception of some jurors that an innocent person ought to raise some defense may offset the advantage that the burden of proof provides the defendant.

Another practical problem in relying on the burden of proof is that the jurors may misunderstand or misapply the proper burden. Many jurors in civil cases have heard the phrase “proof beyond a reasonable doubt” prior to the trial and may improperly rely upon this prior understanding of the burden of proof. They may even apply this criminal standard of proof to a civil case because of their familiarity with the term and their unfamiliarity with the preponderance burden.

The authors have had the opportunity to review many hundreds of video recorded jury deliberations of mock trials. During deliberations of criminal cases, many jurors wondered aloud why the defendant did not present a defense unless, of course, the defendant was guilty. On the other hand, other jurors said that they wanted to be “positive” or “sure” before finding the defendant guilty. More often than not during deliberations in civil trials, jurors talked in terms of determining what “actually” happened and not what some lawyer said “probably” occurred. Still other jurors used the phrase “beyond a reasonable doubt” in describing the burden a civil party had. Further, these results reflect what happens in real cases based on remarks made by jurors to judges and lawyers after a trial.

These inaccurate statements by jurors may have occurred because neither the trial attorneys nor the judge accurately explained the applicable burden of proof during the trial, or because the jurors misunderstood the burdens. These results, nonetheless, do reflect a preference by jurors to reach a just decision based upon actual facts and not necessarily upon which party has which burden.

F. Presumptions

A presumption is the conclusion a fact finder must reach unless contrary evidence of that conclusion has been presented. A presumption requires that a fact finder conclude fact “B” occurred based on the proof of fact “A” unless contrary evidence of “A” or “B” has been introduced. There are numerous legal presumptions established by statute or case law in every jurisdiction. While the impact of burdens of production and persuasion in a case may be nettlesome, the existence and application of presumptions, as well as inferences, can also be perplexing.

A traditional example of a common presumption is due receipt by postal mail. If there is evidence that a communication was properly addressed and mailed, it is presumed that the addressee received that envelope and its contents, unless evidence is introduced to the contrary. The effect of the due receipt presumption is that the fact finder must find that the communication was received unless sufficient evidence has been introduced showing it was not written or prepared, was not addressed properly, was not mailed, or was not received. In other words, proof that the communication was properly addressed and mailed (fact “A”) requires the fact finder to conclude that it was received by the addressee (fact “B”), unless evidence has been introduced to rebut either fact “A” or fact “B”.

The word “presumption” has different meanings that need to be distinguished for trial purposes. A “trial” presumption is a rebuttable presumption; a “substantive” presumption is irrebuttable because it is established by law. Evidence may be introduced to rebut a “trial” presumption, as in the example of due receipt by postal mail. Evidence may not, however, be introduced to challenge a “substantive” presumption because it is irrebuttable and cannot be countered by partisan evidence. The judge applies the legal substantive presumption to the facts and decides whether it applies.

For example, most jurisdictions have a substantive rule of law establishing that a person under the age of seven (or other specific age) is incapable of committing a crime. Often, these rules of law use the word “presume”: a child under the age of seven is “presumed” to be incapable of committing a crime. This presumption is not a trial presumption because neither party can introduce facts to rebut the capacity of the child to commit a crime. Once it is established that a child is younger than seven years, no rebutting evidence is admissible. Substantive presumptions may, however, be subject to constitutional attack—there must be a rational connection between fact “A” (age of seven) and conclusion “B” (incapable of committing a crime).

G. Inferences

A presumption has characteristics similar to an inference but its effect is different. Presumptions and inferences employ the same process: from the proof of fact “A” the existence of fact “B” may be presumed or inferred. The difference in their effect is that an inference is permissive and a presumption is mandatory. With an inference, a fact finder may infer fact “B” from fact “A”. With a presumption, a fact finder must conclude fact “B” from fact “A” (unless contrary evidence is introduced).

Common inferences are based on circumstantial evidence. For example, proof of footprints in the sand (fact “A”) permits a fact finder to infer that someone walked in the sand (fact “B”), but does not require the fact finder to reach that conclusion. There are many inferences that a fact finder can find in a trial. The law of a jurisdiction determines whether a particular fact leads to an inference or a presumption.

H. Burden/Presumption Relationships

Presumptions may have an effect on the burden of production and the burden of persuasion. The precise effect depends upon the law of the respective jurisdiction. Just when you hoped this discussion would conclude, there is more to discern.

The following two examples demonstrate the effect presumptions have on the burdens of production and persuasion:

• The presumption may shift the burden of production to the other party. For example, if the plaintiff must prove that the defendant addressee received a postal document, the presumption of due receipt may satisfy the plaintiff’s burden of production and shift this burden to the defendant to introduce evidence that defendant did not receive the document. If the defendant fails to introduce contrary evidence to meet this burden, the plaintiff wins because the presumption that the properly addressed and mailed document was received is sufficient for the fact finder to conclude it was received.
• The presumption may have no effect on the burden of proof. The effect of the presumption may vanish if contrary evidence is produced that is sufficiently probative to make it reasonable for the fact finder to find the nonexistence of the presumed fact (also known as the “bursting bubble” presumption). For example, the presumption of due receipt disappears after the defendant introduces reasonable evidence for the fact finder to conclude that the document was not received. Usually, testimony by the defendant that the defendant did not ever receive the document is sufficient to rebut the presumption. The plaintiff no longer has the advantage of the effect of the presumption and must now introduce evidence to rebut the evidence introduced by the defendant. Some jurisdictions have modified this effect and require the defendant to introduce “substantial” evidence and not just a reasonable amount of evidence to make the presumption vanish.

The significance of the effects of a presumption relate to the strength of the evidence the defendant must introduce to win. If a defendant introduces no evidence regarding a presumed fact, the defendant loses. If a defendant introduces some evidence, the plaintiff still receives the benefit of the presumption, but may lose. If the defendant introduces contrary credible evidence, the plaintiff loses the benefit of the presumption and the defendant should win, unless the plaintiff introduces further relevant supportive evidence.

I. Presumption/Burden Instructions

The proper jury instructions to be given in a case depend upon the law of the jurisdiction regarding presumptions and burdens. The impact presumptions and burdens have on jury instructions can be substantial. The following alternative instructions, applicable in different jurisdictions, illustrate the differences in the findings the jury may or must make depending upon the facts introduced and how the presumptions and burdens apply in a jurisdiction. This example involves the issue of whether a real estate deed sent by postal mail in an envelope was received.

• You shall find that the real estate deed was received by the defendant.
• If from the evidence you believe that the real estate deed was regularly addressed and mailed to the defendant, you shall find that it was received.
• You shall find that the real estate deed was received, unless from the evidence you believe its non-receipt is more probable than its receipt.
• If from the evidence you believe the real estate deed envelope was addressed properly and mailed, then you also shall find it was received, unless you believe its non-receipt is more probable than its receipt.

The overlapping concepts of burdens and presumptions can be confusing unless analyzed with a logical and rational approach. The primary effect presumptions and burdens of proof have in a jury trial relate to jury instructions. Applicable statutes and judicial decisions in each jurisdiction usually explain the effects that presumptions and burdens have in a case.

The key to understanding presumptions and burdens involves two steps. First, the concepts must be understood. Second, the applicable statute, court decision, evidence provision, procedural rule, or jury instruction that describes the effect of presumptions and burdens applicable in a specific jurisdiction must be applied. LLMs can assist in identifying and understanding burdens. See §1.10(E). And, yet, another option is to become a transactional lawyer and avoid trying cases that are so trying.

INTERACTIVE ADVOCACY

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