Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 8

DEVELOPING A CASE THEORY
AND A CASE THEME

Jay E. Grenig and Rocco M. Scanza

I. 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 of the 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.

Your theory of the case must maximize your opportunity to win.4
You should try to turn the difficult facts to your advantage. You do not
want the opposing party to set the agenda. In developing your theory of
the case, however, you must always keep in mind the goals and
objectives of the client.