A Wigmorean lawyer prepares for trial

The purpose of this part of the chapter is twofold. First, we want to set Wigmorean analysis in general and the chart method in particular in the context of trial preparation and practice in the United States. All competent lawyers use and apply the principles of proof in preparing a case and all use one or more devices to consolidate the results of their analysis. The chart method is simply an additional and a more methodical and rigorous device, one that requires making explicit what might otherwise be left implicit. Second, we want to describe the processes and devices lawyers commonly use to translate and reorganize the products of their analysis of the law and facts into a form suitable for use at trial. We start by describing some such devices and conclude with a brief discussion of ways in which the products of analysis are translated into the tools of advocacy.

Of charts and other analytic devices

All phases of the trial lawyer's work involve two fundamental and related processes: analysis of law and analysis of fact. At all points from the initial interview onward, the lawyer uses her existing legal knowledge to probe for facts that may be relevant to the case at hand. These facts in turn suggest further inquiries: the potentially applicable legal principles may be expanded, narrowed, or refined by research and analysis. The facts known and the products of the legal research and analysis may suggest additional lines of factual inquiry.

Introduction

The purpose of this book is to provide a theoretical and practical foundation for mastering some specific analytical skills relating to the construction and criticism of arguments about disputed questions of fact. It is not a book about the law of evidence, but a central theme has been that the principles of proof and the law of evidence are intimately related. Like Wigmore, we believe that understanding the principles of proof is a valuable, perhaps a necessary, foundation both for understanding the rules and learning how to use them in practice.

At several points this interdependence has been made explicit. Chapters 1 and 2 illustrate the extent to which the two subjects share the same basic concepts: for example, relevance, materiality, weight/probative force, admissibility, inference, credibility, corroboration, prejudicial effect, and so on. In Chapter 3, we saw how nearly all secondary writers on evidence, including all the leading treatise writers, have worked within a framework of shared assumptions, which we called “The Rationalist Tradition.” Those assumptions are common to the principles of proof and the basic principles of the law of evidence in common law countries. We also saw how relevance and weight are governed by “logic and general experience” rather than formal rules and that relevance is the main test of admissibility of evidence. As questions of admissibility are increasingly determined by exercise of judicial discretion and application of balancing tests in the circumstances of a particular case (for example the weighing of prejudicial effect against probative value), so too the logic of proof and the practical operation of rulings on admissibility have increasingly converged.

The chart method: an overview

The chart method of analysis is the most rigorous of the three methods of analysis identified above. It is a technique that enables the analyst to construct, test, and reconstruct arguments about questions of fact. It requires that the analyst articulate every step in an argument, breaking down the argument into simple propositions, and then mapping or “charting” all the relations between those propositions and the penultimate probanda (or the components of a hypothesis). The logic is simple; the complexity lies in the materials to be analyzed and in identifying the relationships between the propositions in an extensive argument based on a mass of conflicting evidence. The logic is binary: Every relevant proposition either tends to support or tends to negate a single hypothesis or conclusion (the ultimate probandum). The technique is dialectical: The aim of the chart-maker should be to construct the most cogent possible argument for and against the ultimate conclusion and to relate the opposing arguments within a single coherent structure.

The chart method structures the analysis at two levels – the macroscopic level and the microscopic level. The macroscopic level involves structuring the “top” of the chart. The ultimate and penultimate probandamust be determined based upon the law and, usually, restated after the analyst has formulated a provisional theory of the case. The penultimate probanda help the analyst identify which of the main propositions must be established to support each of the penultimate probanda.

Introduction

The preceding chapters focused upon the logic of proof and methods for analyzing evidence in a variety of contexts – for example, analyzing the evidence in an ongoing investigation or in a decided case or in preparing for trial. It should be clear, however, that developing the strongest theory of a case and determining how the evidence can best be marshaled to support a probandum necessarily requires that the analyst make evaluative judgments. So far, we have not directly addressed the problems of or techniques for evaluating the probative value of evidence or the strength or cogency of arguments about particular aspects of the evidence or about the evidence in a case-as-a-whole. This chapter and the next focus upon those problems and techniques.

A lawyer must confront the problems at every stage of a case. For instance, in a civil case, from the initial interview onward, the lawyer must assess the weight and force of the evidence that is available and that is likely to become available. Should the case be taken? Filed? Pursued? Is the case ready for trial or is further investigation or discovery justified or required? Given the available evidence and the operative law, should the case be settled and, if so, on what basis? At trial, the questions concern both the lawyers and the decision-makers. Does the particular evidence proffered have such probative value that it should be admitted notwithstanding any improper prejudicial effects that it may have?

The outline method of analysis and its variants are more familiar to practicing lawyers. They have the advantage that they are easier to use than the chart method, althoughit is harder to maintain the rigor that the chart method requires. In addition to these two methods of analysis, there are two analytic devices in common use, narratives and chronologies, that complement and facilitate the use of both methods of analysis. In Part A of this chapter, we describe and illustrate the outline method of analysis. In Part B, we describe the analytic devices and discuss their utility. In Part C, we discuss how and with what effect the methods and devices can be used at various stages of a litigated case. In Part D, we describe the essential tools by which the products of an analysis may be converted into forms useful to a lawyer at any stage of a case.

The outline method of analysis

One of the strengths of the outline method is its utility in organizing the evidence and arguments. In the outline, each of the penultimate probanda is a main heading in the outline. For example in the Simpson case, the outline would begin:

1. I NBS is dead.

2. II NBS died as the result of an unlawful act.

3. III It was OJS who committed the act that caused NBS's death.

4. IV The person who committed the acts that caused NBS's death acted with malice aforethought.

Given the prosecution's provisional theory of the case, the central fact in dispute was the third penultimate probandum.

Introduction

There are no conclusions reached in legal disputes that can be stated with absolute certainty. Consequently, the use of probabilistic concepts is as common in inferences in law as it is in inferences in other contexts. Probabilistic judgments concerning various matters in law are usually made verbally. For example, forensic standards of proof involve verbal probabilistic hedges such as “beyond reasonable doubt,” “clear and convincing evidence,” and “probable cause.” In some contexts it is supposed that probabilistic judgments will always be stated numerically either using numbers on the conventional zero-one probability scale or in terms of odds. But in other contexts, lawfor example, such numerical judgments are quite difficult to make and justify because the events of concern either happened or did not happen on exactly one occasion. We cannot play the world over again a thousand times to determine the frequency with which these events have happened in the past. On only rare occasions in law can probabilities be determined by counting the frequency with which some event has occurred in the past.

There are basically five reasons why, in any context including law, conclusions based on evidence are necessarily probabilistic in nature. The first is that our evidence is always incomplete, we never have all of it. The second is that evidence is commonly inconclusive. This means that the evidence may to some degree favor more than one proposition at issue to some extent, or be consistent with the truth of more than one proposition at issue.

Introduction

The principles of inductive logic are the common tools of practical reasoning and are important to anyone who must make decisions based upon incomplete and fallible data. These tools are specially important in many professions. Society holds professionals to a higher standard of reasoning because, ordinarily, their decisions can significantly affect the interests of individuals or society as a whole, and they are supposed to be competent to make such decisions. In one view, the highest standards may reasonably be required of doctors and lawyers. They undertake to solve problems of great importance for individuals, and their work in the aggregate is critical to society.

Every profession that engages in fact analysis and reasoning must develop ways of recording and organizing the data in forms suitable for analysis and use. This is surely true for lawyers. At every stage, the lawyer must engage in analysis. Has my client provided me with sufficient facts to state a claim for relief or a basis for a defense? What additional evidence should I seek to test and strengthen my client's case? Given the evidence available to both sides, can the data be marshaled to persuade the relevant decision-maker that my client is entitled to satisfactory relief?

Analysis must ordinarily precede use, and a system designed to record and organize data in a manner that facilitates analysis will ordinarily differ significantly from a system designed to facilitate the effective, post-analysis use of that data.

The why

Inferential reasoning, analyzing and weighing evidence, forming judgments about what has happened in the past or what is likely to happen in the future are a necessary part of coping with the problems of everyday living. They are basic human skills that form part of ordinary practical reasoning. Historians, detectives, doctors, engineers, and intelligence analysts have to develop and apply these skills with rigor and precision in specialized professional contexts. So do lawyers.

These skills have not traditionally formed part of professional training. Perhaps this is because they are perceived to be “mere common sense”; or because it has been felt that they can only be learned by practical experience “on the job”; or because of a belief that these are matters of “intuition” or that great lawyers or historians or detectives or diagnosticians are “born and not made.”

This book starts from a different premise. Building on the work of the American legal scholar John Henry Wigmore (1863–1943), we believe that skills in analyzing and marshaling evidence and in constructing, criticizing and evaluating arguments about disputed questions of fact are intellectual skills that can and should be taught effectively and efficiently in law schools. They are as essential a part of “legal method” as legal analysis and reasoning about questions of law. Common sense, intuition, and practical experience all have a part to play in exercising these skills, but they are not adequate substitutes for a systematic grounding in what Wigmore called “the principles of proof.”

In practice, the Precautionary Principle is widely thought to provide concrete guidance. How can this be? I suggest that the principle becomes operational if and only if those who apply it wear blinders – only, that is, if they focus on some aspects of the regulatory situation but downplay or disregard others. But this suggestion simply raises an additional question: What accounts for the particular blinders that underlie applications of the Precautionary Principle? When people's attention is selective, why is it selective in the way that it is? I believe that much of the answer lies in an understanding of behavioral economics and cognitive psychology. Five points are especially pertinent:

• the availability heuristic, making some risks seem especially likely to come to fruition whether or not they actually are;

• probability neglect, leading people to focus on the worst case, even if it is highly improbable;

• loss aversion, making people dislike losses from the status quo;

• a belief in the benevolence of nature, making man-made decisions and processes seem especially suspect;

• system neglect, understood as an inability to see that risks are part of systems, and that interventions into those system can create risks of their own.

Politicians and interest groups exploit the underlying mechanisms, driving public attention in one or another direction. And taken together, these mechanisms show the sense in which the relevant blinders are not arbitrary or coincidental. They have an unmistakable structure.

What is the argument for embodying people's actual willingness to pay (WTP) in regulatory policy? Why should anyone care about actual WTP at all? If we're trying to convert the reduction of danger into monetary equivalents, why is WTP even relevant? Don't people have the right to be free from (certain) risks, whatever their WTP? And what, most generally, is the relationship between deliberative democracy and cost-benefit analysis?

I hope that the discussion of fear has suggested the beginnings of an answer. Suppose that a regulation would cost $200 million annually and that it would save twenty lives – by, say, reducing the permissible level of arsenic in drinking water from 50 parts per billion to 10 parts per billion. (In fact these numbers are realistic for arsenic regulation.) If we refuse to convert the savings into monetary equivalents, we will have a hard time producing a coherent system of regulation. One policy might value a life at $10 million, another at $2 million, another at $40 million, another at $200,000. Of course different valuations would be justified if they stemmed from the nature of the risk or the affected population – and of course we need an account that justifies one assignment of monetary equivalents rather than another. But without some kind of effort to use monetary equivalents, randomness and incoherence – and susceptibility to powerful private interest groups – are likely. I have emphasized that the bottom-line numbers are not decisive.

By its very nature, fear is selective. Some people are afraid to fly but not to drive. Others are afraid of medication but not of the risks associated with avoiding medication. We might fear the risks of insufficient exercise but neglect the danger of excessive exposure to the sun. We might fear the risks of terrorism but neglect the risks of smoking. Unfortunately, it is not possible to take strong precautions against all risks. Those who seem most fearful, and most determined to avoid danger, often increase risks through their very efforts to eliminate danger.

On these counts, nations are the same as ordinary people. When governments claim to be taking precautions, they might well be increasing risks rather than reducing them. Any preemptive war – and the 2003 war against Iraq in particular – can turn out to be an example. So, too, with environmental restrictions that control genetically modified food, or lead companies to use less safe substitutes, or dramatically increase the price of energy.

For these reasons I have criticized the Precautionary Principle, at least if the idea is taken as a plea for aggressive regulation of risks that are unlikely to come to fruition. That idea is literally incoherent, simply because regulation itself can create risks. If the Precautionary Principle seems to offer clear guidance, it is only because human cognition and social influences make certain hazards stand out from the background.