Theory of the Case
Conceptualization of the 'Theory of the Case' and its impacts
You've probably heard it at least once. Maybe from your coach, this page, or some other power team and their condescending ringleader: you need a theory of the case.
Well, that's easier said than done. What is a 'theory of the case' anyway?
A theory is a version of events. It's what one side of a trial believes to have happened, stringing together events, witnesses, and evidence. Of course, both ends of the theory are provided for you: you need to start with the defendant or plaintiff, and end up at acquittal or conviction. The problem is: How do you get there?
STEP ONE - THE CHARGES
The easy thing about a theory is that, unlike my future, you know where you're going. Guilty or not guilty, liable or not liable, and it all comes down to the charge.
What is the defendant charged with? For every crime, there are elements to the charge. These are facts the Crown / Plaintiff must prove in order to win. For example, in a standard tort, there are four elements:
Duty of Care - Plaintiff must prove that the defendant owes some care to the plaintiff
Breach of Duty - Plaintiff must prove that the defendant failed to uphold their obligation
Fault - Plaintiff must prove the defendant breached because of negligent or malicious behaviour (this one can change depending on if the crime is strict liability or not)
Actual Damages - Plaintiff must prove that the breach resulted in injury to the plaintiff
The theory of the case naturally emerges for Plaintiff after looking over these elements. A victim, entrusted to the malign defendant, like lambs to the slaughter. The defendant, looking to save money, or time, or simply neglected to care, breached a duty, resulting in serious bodily, financial, or reputational injury to the victim. Wouldn't the wretch deserve the mercy of the court?
Conversely, the theory for Defendant is symmetrical. A Defendant did not breach their duty, or that the breach was through no fault of their own but rather an unforeseeable accident, or that the breach caused no harm and thus should be dismissed.
Once you have a solid understanding of the elements of the charges, you'll start to see that each affidavit and each piece of evidence starts to come together, to support or undermine one or more of the elements. All you need do is to string them together.
STEP TWO - WITNESSES
Remember: a theory is necessarily holistic. This means every part of the case has to work together to formulate one coherent story. You can't examine each witness and their character flaws individually. Crossing a witness has to point somewhere beyond fostering trust or distrust about a witnesses' statements. Make a chart with every affidavit, in one column, place down everything they say, another, their flaws, and finally, what you need them to admit as part of your theory. It could look something like this:
The victim of a burglary
Gave different car make and model in initial 911 call
Could not have positively identified defendant
Home at 11, night of the crime
Gloomy night, no lights on in the house
Could not have positively identified defendant's car
Saw masked figures enter home; exit through the front lawn; escape in Toyota
Street lamps covered by trees; no clear line of sight; 20 metres away
The theory from defense for a case like this could've gone as: The defendant was never at the scene of the crime, and the victim, because of the foliage and dark night, could not prove anything contrary to that theory.
Witnesses and the theory is symbiotic. The theory characterizes the witnesses, and conclusions drawn in examinations support the theory. You should have a clear end goal of what you want from each witness before you write any examinations, courtesy of your banger theory of the case.
STEP THREE - THE SPEECHES
We'll go into deeper detail about Opening and Closing statements individually, but what's to know now about them, vis-a-vis the theory, is that they need to echo.
The Opening should bring out the theory, as one long story, telling the jury what they'll hear throughout the course of the trial, and the Closing should echo the theory, reinforcing it to the jury by recalling all the important conclusions you've brought out of every witness.
The theory of the case should play centre stage in the speeches as the thing that links the meat of the trial together. Be sure to emphasize the use of every examination, and play up the emotion of a tribulating event so as to warrant a trial in the first place.
And that's the Theory of the Case! Perhaps the most difficult thing to master in mock trial, but hey, that's what we're here for.
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