Elements and evidence analysis

Case management often means establishing a schedule for the case.  Federal courts require us to submit proposed schedules. Dates are established for phases of the litigation. The pleadings, fact discovery, identification of experts, expert discovery, dispositive motions.

But scheduling alone won’t win a case. For that, we need a broader, more substantive definition of case management. I’ll borrow from the health care field and the Case Management Society of America. They describe case management as “a collaborative process of assessment, planning, facilitation, care coordination, evaluation, and advocacy … to promote patient safety, quality of care, and cost-effective outcomes” (https://cmsa.org/who-we-are/what-is-a-case-manager/).

Lawsuits also benefit from assessment, evaluation, planning, and coordination. One approach to achieving such goals is the “elements and evidence” analysis. It’s a concept, not a writing assignment, though I’ve had cases in which I actually prepared a written outline. Whether it’s on paper or in your head, this analysis can be a useful tool. So what do I mean?

The Analysis Summarized

Elements and evidence analysis identifies what must be proved in the case—the elements— then organizes the evidence that will be used to establish them. Too simple? You may already know the elements—in a negligence case, for example. For many claims, though, it’s worth asking how the statute or case law in your jurisdiction defines the elements and what further issues may arise. As for the facts, this method of analysis evaluates the evidence available to you and identifies what must still be obtained.

The Elements

Elements analysis is a legal inquiry—a function of research. For this purpose, I use the term “elements” loosely. The analysis looks at:

• proof requirements that the plaintiff must establish or the defense must refute
• any other issue that will bear critically on the outcome of the case
• any other fact or inference that will help achieve a favorable result

The first prong encompasses the law school concept of elements—the stated requirements of proof. What tests do the courts use in determining whether a given element has been established? Jury instructions are an excellent source. They provide simple, practical formulations for claims, elements, and tests. See, e.g., Eleventh Circuit Pattern Jury Instructions. Google Scholar is another excellent resource, free to all.  It’s my go-to site for legal research even when a paid service is available.  (I’ll post a discussion on research techniques at some point.)

The second prong on my elements list is any issue that will bear critically on the outcome. Evidentiary issues are of that ilk. So are proximate cause issues in some cases. Here again, you’ll find formulations in the case law and useful words and phrases in the jury instructions. See ISSUES AND ARGUMENTS, Proximate Cause 1: Dealing with intervening cause.

My last “elements” prong is any other fact or inference that will help achieve a favorable result. State-of-mind is a frequent focus. Human emotions bring dry facts to life. What motivated the plaintiff’s supervisor to falsely accuse her of incompetence? Why would her co-worker lie about the matter? What did the company gain by terminating her?

This third prong bridges the distinction I’ve made between elements and evidence. State-of-mind issues are among the required elements of proof for some claims—fraud, malice, intent, and knowledge under Fed. R. Civ. P. 9(b) and willfulness under the Fair Labor Standards Act, 29 U.S.C. § 255(a). Even when not required, state-of-mind evidence can influence the outcome. We evaluate each other’s behavior on the basis of the reasons and motivations prompting it. Often we ask, “Why is he acting that way?” Casting the plaintiff as reasonable and the defendant not so can influence the judge or jury even in a breach of contract case. See: Cross Examination 4:  Cross-examining on state-of-mind issues.

The Evidence

Evidence is relevant if “it has any tendency to make a fact more or less probable” and that fact “is of consequence in determining the action.” Evidence Rule 401.

For this analysis, it’s useful to conceive of evidence in three categories. Category one consists of what you already know. You had a reason for accepting the representation. You think you can win the case or at least favorably position it for settlement. In a defense case, your client’s position might be weak, but effective representation can still influence the settlement value.

Does the already-known evidence support all of the elements, or only some of them? What specific elements are supported, and how? What squares remain uncovered?

This leads to the second category, evidence you must gather. Information requested through interrogatories. Documents and data obtained through production requests. The plaintiff’s employment file. Write-ups and other disciplinary action. The plaintiff’s wage history in Excel format. You know that these things exist and are taking the necessary steps to gather them. (Much more about this in future posts.)

There is, then, a third category. Think of it as aspirational evidence. From the facts you know, you have a sense of what else might also be true. Your client has told a compelling story, from his or her personal viewpoint. You can evaluate it objectively and surmise what must have happened on a broader scale, and why.

This is the stuff of cross-examination. Admissions elicited from the parties and their representatives. Interviews with non-party witnesses. Deposition transcripts and witness statements capture the evidence you aspired to obtain.

Using the Analysis

The benefits of elements and evidence analysis grow with each phase of the case.

Pre-litigation

The analysis helps to identify strengths and weaknesses at the outset. Is there an element you’ll have difficulty meeting (or your defense client will have difficulty refuting)? Your client has told you what happened. Are there documents available that corroborate or refute it? Is there a witness—a co-worker, for example—you can contact and interview?

Early investigation has saved me from taking a losing case, and made seemingly indefensible ones better. In one defense case, my client’s supervisor was accused of making childish yet offensive comments about employees. The plaintiff had a case for sex and race discrimination. However, the plaintiff’s co-workers had a more favorable interpretation of the events and did not support her claims. The case became one for corrective action rather than litigation. In another instance, I was asked to represent a former union president who said the current leadership colluded with management. It turned out that her accusations stemmed from political viewpoints that other, rank-and-file union members didn’t support.

During Discovery

After you take a case, the elements and evidence analysis expands. Whether it’s a mental list or in a Word file, an outline helps formulate the discovery strategy. 

Grounding the discovery on elements research pays dividends. Long before the summary judgment stage, determine the tests and formulations by which the court will evaluate the sufficiency of proof. Discovery can shift that balance.  Often an obstacle under the case law can be surmounted by a document obtained in discovery or an admission elicited in deposition.

For critical depositions, this analysis can provide the first, early thinking about cross-examination. What witnesses or representatives will you depose and what exhibits will you use with them? What specific admissions might you obtain? I always have an “admissions list” when I plan a cross-examination, at least in my head. 

When you question witnesses, use the actual words of the jury instructions or case law. An example from a deposition illustrates this. The Uniform Commercial Code allows “consequential damages” for losses resulting from “general or particular requirements and needs of which the seller at the time of contracting had reason to know.” UCC § 2-715. My client had lost valuable defense contracts because the metal parts it sold to the government lacked a required constituent. We sued the supplier of the metal for causing the problem. I was deposing the supplier’s manager and had him identify various documents that had been produced. They included assays of metal content. The manager acknowledged my casual follow-up question—that the assays were prompted by “particular requirements that the supplier knew about when the contract was entered into.”

Another example involves the second prong on my elements list—issues that bear critically on the outcome. Let’s say you have an inculpatory email authored by a company supervisor. Does it constitute an admission under Evidence Rule 801(d)(2), making it admissible as substantive evidence? Former federal judge Herbert Stern speaks of “levels of advocacy.” See H. Stern, Trying Cases to Win – The Advanced Course. One level of advocacy would argue that Rule 801(d)(2) applies because the email was written by a supervisor. A second level of advocacy could weave specific criteria of the rule into the argument. Higher still would be to elicit testimony in deposition, establishing the applicability of the rule. The email’s author was a supervisor at the time he wrote it, and his responsibilities included the subject matter of the email. Rule 801(d)(2)(D). Alternatively, the supervisor was asked by management to write an email addressing that subject. Rule 801(d)(2)(C). Even on an evidentiary issue, use key phrases from the law in your questions.

Motion Practice and Trial

Invariably, we use elements and evidence analysis in preparing or opposing a motion for summary judgment. Under Fed. R. Civ. P. 56(c), the court looks at “each claim or defense” and grants summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The analysis organizes those components in advance of the briefing.

Trial preparation is guided by the analysis, and the trial brief submitted to the court is essentially an elements and evidence outline. During trial, it’s helpful to have a list of the exhibits and other key evidentiary points, which you can check off as they’re introduced and admitted. Similarly, an outline organizing the evidence under the elements prepares you to argue a motion for directed verdict and make the summation or final argument to the jury. During a civil trial I was defending, I returned from lunch and found my opponent writing on a whiteboard—essentially an elements and evidence outline. The court allowed him to have it visible to the jury during his closing argument. 

As I said at the outset, this analysis is a concept, not a writing assignment. Consider its potential usefulness in securing favorable litigation outcomes.