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The Story of the Case: Factual and Emotional

Case Theory

D. Tucker CharnsIndigent Defense Services

Regional Defender, Jud. Div. I, IIItucker.charns@nccourts.org

919-475-6957 (mobile)

Start off with something “unlawyerly”.

Think of the last time something moved you.

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Think of something heroic.

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Write a quick note to yourself about this thought.

Factual and Emotional Theory of

the Case

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Why Have OneWhat It Is Not

What It IsHow to Get One

Why have one?

Imagine a tool, a hack, a shortcut that:

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Helps a helpless person

Puts a stop to bullying

Makes your job easier and you look great while you do it

Magic?

A Hack?

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A factual and emotional case story gets you where you want to go and stops you

from going where you don’t.

A Map

You can tell a busy ADA or judge what your case is about in 30 seconds

You are always ready to argue your case

It gives you swagger

It makes you THAT lawyer

Emotional and Factual Theory

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Without an emotional and factual theory, you are lost.

Without an emotional and factual theory, your client loses.

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Every bad case is better with a factual and emotional case

story.

Every case.

Every time.

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The Three Little Pigs

The Real Story of the BB Wolf

What is not an emotional and factual

case theory.

Reasonable Doubt

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Nothing factual or emotional.

Here is a reasonable doubt test: ask a mother.

Mom, did anyone actually see me blow down that straw house?

Mama, I don’t really know what happened and no one can said I did.

Mommy, you know those pigs have never liked me and you know you should never believe a pig.

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Would a mother believe that?

If your mother wouldn’t believe you, the judge won’t believe

you.

And your mother likes you.

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You go with reasonable doubt as your case theory, you will

fail.

Your client is F’edThe case is F’ed

You are F’ed

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Legalese won’t help.

Legalese is a dead language and will kill your

case:

Alibi

Self-defense

Voluntary intoxication

Entrapment

There is no emotion behind these words.

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There are no facts behind these words.

He was at Lowe’s,loading mulch when he heard the fire trucks race to Mr. A. Pig’s house.

Mr. A. Pig came at him with a steak knife, screaming, spitting and Mr. BB Wolf had seconds to fight back before he was killed

I’m waiting….What is an Emotional

and Factual Case Theory?

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It is one central story that has the factual, emotional and legal reason why the right outcome for the judge is something good for your client. It is your client’s story of innocence, of less blame or unfairness. It is what guides you through every part of the trial. It resolves problems and questions for the judge, it does not hide from them.

Elements of Factual and Emotional Case TheoryOne central story

With factual, emotional and legal reasons why the judge should do the right thing

Story of innocence, less blame or unfairness

It is what guides you

It is one central story.

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One story line.

Do not compete with yourself.

Story of a wolf, just trying to borrow a cup of sugar when he accidentally blew down his neighbor’s straw house. The neighbor was a pig anyway, who has a record for driving drunk and cannot be trusted. Besides, cross-species identification is unreliable. And that house was old anyway.

Factual, emotional and legal reasons why judge should do the right thing.

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Facts, Emotion, Law

Facts bring out emotion and move people.

Nobody likes being told what to do or what to feel.

The law is the background music.

Find the right facts, the judge will find the right law.

Which moves you?

Pigs are not reliable witnesses. You should not believe them.

Mr. B.A. Pig, the brother of Mr. A. Pig, was scared when he saw a wolf knocking at his brother’s house. He turned away quickly to call 911.

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Which moves you?There is no evidence that my client had the intent to hurt anyone. The State has not one witness that can say he did.

BB Wolf went to borrow a cup of sugar for his grandmother’s cake. All he was looking for was a little help.

Which moves you?

The evidence shows that Mr. BB Wolf was voluntarily intoxicated when he blew down Mr. A. Pig’s house.

Mr. BB Wolf, not understanding measurements and how much alcohol is in vanilla extract, was not thinking straight and thought he was at his grandmother’s house when he knocked on Mr. A. Pig’s door.

Story of innocence, less blame or unfairness.

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Let me tell you a story…

Think about the best storytellers.

They get us right at the start

They know how they want you to feel

They know not to waste audience’s time

Think about the worst

Unfocused

No set theme

“And then she said..and then I told her…wait, never mind, but listen….”

It is what guides you through every part of the trial.

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An emotional and factual case theory gives you checklists.

CHECKLIST

Opening:

Story can be the opening

If your story is about an accident, don’t talk about mis-identification

CHECKLIST

Cross-examination:

What points to make

What points don’t help

What to leave alone

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If your emotional and factual theory is mistaken identification, don’t go after the witness’s prior record.

CHECKLIST

Direct

What points to make

What points don’t advance the story

If your emotional and factual theory is that the event never happened, don’t talk about self-defense.

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I want one! How do I get one?

FIVE STEPS

Find your facts.

Pick your brand (genre).

Choose your three best and worst facts.

Write a headline.

Write a lead-in paragraph.

1. FACTS

Find all the facts you can.

Talk to your client, listen to your client.

Read every piece of paper.

Talk and listen to every witness.

Field trip!

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THAT’S THE IDEAL WORLD.

REAL WORLD?

REAL WORLD.Find all the facts you can.

Talk to your client, listen to your client.

Read every piece of paper.

Talk and listen to every witness.

Field trip.

2. Pick Your Genre

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It just never happened (mistake)

It happened but I didn't do it (mistaken identification, alibi)

It happened, I did it but it was not a crime (self-defense, accident, missing elements)

It happened, I did it, it was a crime but not this crime (lesser included or another crime)

It happened, I did it, it was the charged crime, but I’m not responsible (insanity, voluntary intoxication, duress)

It happened, I did it, it was a crime, I’m responsible, so what? (jury nullification)

Tips on Choices

Gets harder as you go down the list

Mistake over lies almost every time

Less you have to take on, the better

For Mr. BB WolfNever happened?

It happened but I didn’t do it?

It happened, I did it, but it is not a crime?

It happened, I did it, it is a crime but not this crime?

It happened, I did it, it’s this crime but I’m not responsible?

It happened, I did it, it’s this crime but so what?

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For Mr. BB Wolf

It happened, I did it, but it is not a crime: ACCIDENT.

3. Choose Your Facts

Three best that support your theory.

Three not so good that you need to address to support your theory.

Three Good Facts

He has allergies

He was baking a cake for his grandmother

He still had the empty cup in his hand

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Three Bad Facts

He blew down Mr. A. Pig’s house.

He and Mr. A. Pig were enemies.

He was eating Mr. A. Pig when the police arrived.

4. Write a Headline

Headline is to help focus.

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Headline How-To: U

Unique

Urgent

Ultra-Specific

Useful

UNIQUERemember your audience

Stand out in a busy court

Grab attention

URGENTGet to the point

Don’t delay

Think about the subject lines of emails

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ULTRA-SPECIFIC

Legalese is not specific

Neither is DEFENDANT

Paint a picture

USEFULIt will explain your case and why you should get what you are requesting

It tells you what to focus on

It reminds you what the case is about

Mr. BB Wolf

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AN INTENT TO BORROW TURNS TO SORROW:

Grandson’s Generosity and a Pig’s Prejudice Results in Accidental Death

Practice Make Perfect

Red Honda Cuts In Traffic as Mom Races to Store to Beat

Closing Time

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Exhausted Man Works All Night to Pay Fine to Avoid Day

in Jail

Husband Walks by Dirty Dishes, Wife Walks Out

5. WRITE A PARAGRAPH FOR YOUR FACTUAL AND EMOTIONAL CASE THEORY

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Mark Twain

“I would have written you a shorter letter if I had had the time”.

Stories take time

Taking time up front saves you time and your client from doing time

Telling the Story

Wordsmithing

Use facts to bring out the emotion

Let the reader lead

Paint a picture

Emotionally hook your judge

Turn the chronology around: start from the end

Quotes from the case

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Practice Make Perfect

“I didn't hurt anybody and I am going to jail?”; that’s what 19 year old Shawn Shaw asked when he got to the police station in March. He got a speeding ticket last summer, 64 in a 55. He got sick and lost his job at Wendy’s. He could not pay his ticket. He got his job back in February and was on his way home at 11:30 one night when he came to a DWI checkpoint. He was sober but tired. When the officer discovered that his license was revoked, he arrested Mr. Shaw and he went to jail that night. His mother got him out of jail the next night but he lost his job again. “I didn’t hurt anybody and I am going to jail?” What can the answer be to that question?

The red Honda, the down payment coming from her last paycheck from McDonald’s, pulled in front of me. Her “My Kids An Honor Student” bumpersticker had to be older than that kid was now. She drove like the wind. ABC stores close at 9.

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For BB Wolf’s grandmother’s birthday, he always baked a cake. That morning, he woke up, suffering from his usual allergies: coughing and roof-raising sneezing. He was not going to disappoint her. He got out the mixing bowl, the flour, the butter and saw he was out of sugar. He didn't have time to walk into town. He decided that, although his neighbors were not his best friends, they would want to help him with his grandmother’s cake and loan him some sugar.

He knocked on the door of A. Pig’s straw house, softly at first and then, as he heard voices, a bit harder. Each knock made dust fly. As hard as he tried, he could not hold back a great sneeze. To his shock, that sneeze leveled that straw house. He stepped carefully inside, calling out to A. Pig. Silence. He could, however, smell bacon and saw why: A. Pig had been blown into the fireplace. And rather than waste a good breakfast, the most important meal of the day as his grandmother taught him, BB had a few slices of pork belly, And that is what the police saw when they arrived: a wolf eating breakfast, still holding an empty cup for the sugar for his grandmother’s birthday cake.

The End.

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Wait. Remember those heroic slides?

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Judges want to be heroes, too.

So do assistant district attorneys.

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Let them.

COMMENTS, QUESTIONS?

Think you can do it?Think you should?