Developing a Case Theory and a Case Theme - Chapter 4 - Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators

Rocco M. Scanza and Jay E. Grenig both serve on the American Arbitration Association's labor panel.

Mr. Scanza is an Attorney, Arbitrator and Mediator of labor and employment disputes. He is also the Executive Director of Cornell University's Scheinman Institute on Conflict Resolution, where he teaches courses in workplace alternative dispute resolution. Mr. Scanza was formerly a national Vice President at the American Arbitration Association. He graduated from Queens College in New York City and Loyola Law School of Los Angeles. He lives and works in Ithaca, N.Y.

Mr. Grenig is a Professor of Law at Marquette University Law School. He has served as an arbitrator or mediator in over 2,000 labor and employment disputes. A member of the National Academy of Arbitrators, the American Law Institute, and the Order of the Coif, Mr. Grenig is also a fellow of the College of Labor and Employment Lawyers. He formerly chaired the Labor and Employment Law Section of the Association of American Law Schools and served as a consultant to the National Commission on Employment Policy. He has written or co-written numerous books and articles.

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Originally from Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators

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§ 4:01 GENERALLY

Developing a theory of the case is one of the most important tasks you perform in preparing for an arbitration hearing. The case theory is the strategic plan for achieving your goals in arbitration. Development of a case theory begins after you learn the initial facts through interviews and informal investigations.1 Throughout the preparation and presentation of the arbitration case, the theory of the case will be revised and updated as more information becomes available.

The theory of the case provides a tactical structure serving as your organizing principle for the arbitration hearing. A properly developed theory of the case will provide guidance for every action—from investigating, interviewing, selecting witnesses, preparing an opening statement, selecting exhibits, examining witnesses, and preparing closing arguments.

In developing a theory of the case, you must understand both the development o fthe legal theories and the factual theories of your case and your opponent's case. The legal theories and factual theories are interrelated, and linked through law, information, and the client's objectives.2 The legal theory is the legal framework developed from review of applicable rules and standards, including statutes, regulations, contract provisions, and case law. The factual theory is the party's story, justifying relief under the legal theory and based on the information and inferences from that information.3