Published: Wed, 07 Mar 2018
BPTC – Case Preparation
Case preparation is an essential and important skill spanning all aspects of the role of a barrister in both civil and criminal practice. It is fundamental to understanding the evidence and its implications in any given matter. It enables the use of the facts to support a case and provides a clear picture to understand and analyse any potential problems and its implications. Relevant issues relating to both the law and the case can be identified and allow the important process of appreciating both sides in any matter in order to prove or disprove a given piece of evidence. Good preparation strengthens the ability to evaluate a case through assessing the worth of the evidence and plugging any gaps that are present and allows the construction of good strong arguments.
Competent preparation enables a case to be presented competently containing a convincing and well worked out theory. It enables clarity and accuracy thus providing a sound basis for advocacy in all areas. It also requires excellent management of facts, a clear method, logical and lateral thinking and flexibility.
Any case preparation should fit with relevant law and be based upon common sense and reality using each document or witness to its full potential, objectively and in as just way as is possible, whilst remaining within the bounds of professional ethics and procedural rules.
The process comprises analysis, sound and focused research and theory. Analysis enables examination of elements of law, practical and focused legal research, consideration of the laws of evidence such as the burden or standard of proof and admissibility and allows the establishment of a clear and correct framework on which to build the argument for the case in hand.
Development of a theory requires ‘good’ and ‘bad’ facts to be identified and managed appropriately and facts must be distinguished from opinion, surmise, argument or speculation. These are the primary tools for case analysis and management both strategically and tactically. This in turn enables consideration of the case theory and how that theory can be presented in a logical form to achieve optimal effect through the avoidance of neutralisation or the undermining effect of the bad facts identified. It is also important to distinguish between evidential fact and evidential opinion in the light of the theory developed and identify areas for further inquiry or action.
Above all case preparation must be based on the law in force and must be logical, structured, factual and influential together with being objective, realistic, material and flexible. Any theory developed must be convincing and free from gaps, supposition and speculation. It is important that it is audience related; it should be aimed at whoever is going to be deciding the matter and must be professionally presented with regard to logic, emotion and must make the abnormal normal in approach.
There are many different techniques available such as lists, chronologies, charts, mind maps and tables and each practitioner will employ the technique that works best for them in any given case or several may be used in one instance. The main method of approach however should be to set out the relevant law that applies, undertaking any relevant practical legal research, identify the relevant parties including witnesses and set out a chronological list of events. This will then enable a theory to be identified for both sides to the case after all the good and bad facts have been identified, Finally any matters that require further proof or more information can be listed and dealt with as appropriate. Tactics and pre-empting the opposing side’s case can then be considered and catered for.
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