From: Legal Services Practice Manual: Skills

© 2017 Benchmark Institute

CASE PLANNING GUIDE

1. IDENTIFY CLIENT OBJECTIVES

a) From initial interview, what does the client want?

b) Summarize facts

c) Identify legal issues

d) Generate possible solutions

e) Identify additional fact investigation

f) Identify additional legal research

g) Formulate a timetable for action List options to present to client.

2. ANALYZE FACTS, POSSIBLE CAUSE OF ACTION, AVAILABLE REMEDIES

a) Organize factual chronology

b) Look at facts from a non-legal perspective

c) List legal theories, causes of action, defenses

For each:
1) List elements

2) Opponent’s arguments

3) Possible rebuttal

d) Test strength of evidence (See Preliminary Fact Analysis)

1) List elements

2) Supporting facts for each element

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 3) Opponents possible rebuttal

4) Method of Discovery

3. ANALYZE CAST OF CHARACTERS

4. FORMULATE THEORY OF CASE (OPPONENT’S)

5. SELECT FORUM

6. FORMULATE WORKPLAN

a) Identify any provisional relief

b) Identify motion practice

c) Identify discovery

d) Plan negotiation

e) Plan trial

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Legal Services Practice Manual: Skills 2 Benchmark Institute
CASE PLANNING
Some form of case planning is needed for every We have divided case planning into six major
case that you handle. Many advocates think that steps. In our case plan model, advocates must—
case planning means identifying the applicable
law, learning some new facts and hoping that the 1. Identify Client Objectives
entire case will hold together at the negotiation, 2. Analyze Facts, Possible Causes of Action,
hearing or trial. A great deal more is required to Remedies
meet minimum standards of professional 3. Analyze Cast of Characters
competence. 4. Formulate a Theory of the Case
5. Select Forum
Case planning is a specific kind of problem 6. Formulate Workplan
solving. It involves defining the client’s
problem, identifying possible solutions and These steps involve further tasks described
selecting courses of action. It means below. They are incorporated in the Case
constructing a complete picture of the client’s Planning Worksheet contained in this chapter.
situation from the facts, the applicable law, and
the way in which the facts and law fit in the 1. Identify the client’s objectives.
larger context in which they occur. It must From the initial interview, what does the client
include developing an overall theory of the case want? Sometimes identifying the client’s
— a detailed, coherent and accurate story of objectives requires probing beyond how the
what occurred which demonstrates the client’s client first expresses what she wants. Sometimes
entitlement to relief. This picture requires the client needs help in articulating and framing
projecting forward in time, imagining how the exactly what she wants. It’s every advocate’s
opposition will view the case and imagining how duty to find out at the initial interview what the
it will be viewed if it must be appealed. client wants to achieve.

Quality representation requires you to make 2. Summarize the facts of the client’s
things happen for your clients according to plan. problem.
Every step of your plan will influence the What happened? Who said and did what? Who
ultimate outcome and may even change the are the key players? What is their relationship to
entire nature of the case. Advocates develop the client? This statement summarizes the facts
winning cases — they don’t walk through the but is specific enough so that someone
door. unfamiliar with the problem could grasp it from
reading this summary.
This overview describes one approach to
planning and preparing cases. It breaks out the 3. Identify the legal issues in the case.
various steps involved in case planning and What do you initially recognize as the issues in
presents in linear form that which is circular. It the case? For example: Is one parent continually
contains the elements common to all case absent from the home? Are the premises habit-
planning models: defining the problem, able? This issue statement will be modified once
generating and examining alternatives, locating further legal research and fact gathering are
facts, selecting and evaluating the facts and law, completed.
and devising a case theory to produce the result
most favorable to the client’s situation. As you become familiar with particular areas of
the law, initial issue identification becomes
easier. Checklists of the types of issues
presented by various factual situations can be

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helpful in areas with which you are unfamiliar or Understanding the larger context may suggest
which are not in your area of expertise. ideas for further research and fact investigation.
Is the action taken against the client isolated or
4. List all possible solutions to the client’s part of a larger change instituted by an
problem. institution or agency? How are decisions made
This step involves brainstorming any and all within the institution and what are possible
solutions to the client’s problem. The point is to pressure points there? Is this behavior part of a
generate as many possibilities as you can think pattern and practice that affects the client
of — no matter how crazy or far out. Quantity community? Is this a systemic problem that must
breeds quality. Include non-litigation strategies be addressed?
such as legislative, administrative, economic
development and community education Take advantage of the expertise within your
strategies. program and legal services community in
finding out about how institutions and systems
This step also forces you to adopt a larger view function. Failing to examine the larger context
of the client’s problems. The larger implications within which the problems arise leads to
of a case may relate to the client community as a decisions about handling a case which are not
whole thereby dictating other strategies. While the most effective ones to achieve the client’s
cases often present a conflict between an desired goal.
individual and an agency, a broad range of other
relationships and processes may touch on the 5. Identify any additional factual
client’s problem in different ways. To generate investigation that is needed to formulate
possible solutions, you must understand some of viable alternatives to present to the client.
what’s actually occurring within the system Include the information needed, the
where the dispute arises. possible sources of that information and
the method you would use to get it.
Example
The eligibility worker at the Welfare • WHAT
Department determines that the client and her • SOURCE
children are no longer entitled to benefits • HOW
because the children are not properly enrolled in
school. Clearly related to the client’s problem This step involves locating information needed
are the procedures and relationships between the to offer viable alternatives to the client. This
Welfare Department and the school district and information may be obtained by a quick call to
any government policies of the welfare an administrative agency or landlord or may
department, the efforts to reduce welfare costs. involve more detailed information about an
agency’s or institution’s usual practices. In any
The client’s problem is very involved in several event, you should identify what information you
relationships and processes. The way in which need, the source of that information and how
the advocate understands these relationships you will go about getting it.
often determines how she identifies the
alternative solutions to solve the client’s 6. Identify any additional legal research that
problem. If action has been taken against the needs to be done to formulate viable
client because of a change in department policy, alternatives to present to the client.
an administrative hearing for the client may not What legal research must be completed in order
be an appropriate strategy and litigation to to present viable options to your client? This
challenge the policy change may be more step is critical to insure that you’ve identified all
appropriate. the potential legal issues and to determine which
of any of the solutions generated in Step 4 are
viable enough to present to the client.

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In some cases the amount of legal research only with this step, we suggest that you get the
may involve checking the language of a code insight of people who are not in the legal
section or regulation. In others it may involve business.
reading narrative overviews of the subject,
analyzing various statutes, regulations and court a) What’s the essential wrong or unfairness
decisions. Write up the research and include it in to the client?
the case file. Some offices require a legal memo What isn’t “right” about what’s happened to
to the file which includes this information. your client?

7. Formulate a timetable for action (what b) Does this unfairness suggest any causes of
must be done, when it must be done and action or defenses that were not obvious
by whom). to you?
Be creative here. If the law doesn’t recognize a
• WHAT real cause of action here, maybe it should.
• WHEN
• WHO c) Identify any facts that make the case
special or more appealing.
This step incorporates what you have decided What stands out about your client, what
needs to be done for Steps 5-6 into a workplan. happened to her or him, or the opponent that
This step is particularly crucial when you are distinguishes this case?
working with other people on a case.
d) Identify any theme or unifying principle
8. Identify the options that you will present that these facts suggest.
to the client for his/ her decision. If this scenario were a painting, song, movie or
This step assumes that you have completed the TV show, how would you title it?
tasks in #7, refined the issues in #3 and have
narrowed the solutions stated in #4 to realistic 11. Identify the legal theories of the case
and viable solutions. Depending on the case, (causes of action or
completing #1-8 could take minutes, days or defenses/counterclaims).
even months. Formulating the legal theories may require
continuing the legal research begun immediately
Once the client chooses the option to pursue, go after the initial interview. Expand your research
to step 9. until a firm decision is reached as to the nature
of the substantive law governing the case.
9. Construct a factual chronology of the
case. Legal theories are the parties’ legal arguments
Once the client has chosen which option to for why they should prevail. The plaintiff’s legal
pursue, it’s helpful to put together a detailed theory is called a cause of action or claim. A
factual chronology of what happened when. You cause of action is a legally acceptable theory for
should begin as far back as needed to give a full bringing a lawsuit which will be won if the facts
background of the case. Doing the chronology support the elements of the theory. In an
will give you a good grasp on the case and make administrative agency context, legal theories
apparent factual gaps. may be called claims, sometimes causes of
action. The client may be called the claimant,
10. Analyzing the case from a “non-legal” applicant or recipient.
perspective:
Looking at cases from a common sense Examples
perspective gives you valuable insight into a A tenant-plaintiff’s theory in an affirmative suit
case and usually contains the key to possible against a landlord-defendant is that defendant
themes or theories of your case. To help you has breached a statutory duty to keep a rented

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Legal Services Practice Manual: Skills 5 Benchmark Institute
apartment in habitable condition, entitling the of said property if the tenant has failed to pay
plaintiff to damages. Defendant’s legal theory is agreed upon rent.”
that no such duty exists.
To evict pursuant to Section 123, these elements
To evict a tenant, the landlord- plaintiff’s theory must be present:
is that defendant tenant breached the lease by 1. owner
failing to pay the rent in a timely (within 5 days) 2. real property
manner. Defendant argues that 10 days 3.tenant in possession real property
constitutes a timely manner. 4. fails to pay
5. agreed upon rent
In a Welfare Department’s action to cut off a
family from TANF, the family’s theory for Parties can argue over what elements must exist
remaining on aid is that the children are or how elements should be defined in order to
deprived of parental support and care because of evict. These arguments over the existence or
a parent’s absence from the home except for definition of elements are legal arguments.
holidays. The Welfare Department’s legal theory
is that to be considered deprived, a parent must In the example above, the parties could disagree
be totally absent from the home, never visiting. over the meaning of “tenant” in Section 123:
whether a person who rents a room from the
12. Using the Legal Issues Form, identify the original tenant is a “tenant”.
elements you must prove to prevail in
each cause of action or defense, any legal Example
arguments your opponent might make as In order to be eligible for welfare benefits for
to their validity, and your rebuttal to O’s children, an adult must qualify as a caretaker
position. relative. Welfare Department alleges that
Mother Jones is ineligible as a TANFcaretaker
• Elements relative because she is neither a biological nor
• O’s Position adoptive parent. Mother Jones counters that as a
• Rebuttal foster mother she meets the definition of
caretaker according to court case A. v. B. In
For each cause of action, claim and defense, list rebuttal, the Welfare Department’s argues that
the elements that you must prove to prevail on A. v. B. does not apply, because C. v. D. over
that theory and the authority that supports your ruled it.
argument. Next, indicate any arguments your
opponent might make as to the validity of the 13. Using the Preliminary Fact Analysis
element with applicable authority. Finally, state Form, identify the facts that support the
any legal arguments that you can make to rebut elements, O’s rebuttal to those facts and
opponent’s arguments. additional facts that you need.

The elements of a claim or defense are the • Elements

conditions that must exist to sustain the claim or • Factual Bits
defense. Elements are found in the substantive • O’s Rebuttal
law which governs the case, whether the law is • Facts Needed
embodied in statute, regulation or a court • Discovery Method
opinion holding.
This step is the nitty gritty of analysis. It
Example requires you to state the elements of each cause
Assume that Section 123 provides: “An owner of action (transferred from the Legal Issues
of real property may evict a tenant in possession Form), list any facts or factual bits that you have
to prove that element, state the opponent’s

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Legal Services Practice Manual: Skills 6 Benchmark Institute
rebuttal, identify additional facts that you need label the hash the case theory. A good case
to prove the element, and indicate the method to theory is based on this analysis, but is couched
collect that information. in a coherent framework which compels the
conclusion that your client should prevail.
For example, in order to prove the element “fails
to pay” in the landlord-tenant example above, A good case theory:
plaintiff lists these facts: rent was due on July
1st, landlord did not receive any money from • Is based on strong facts and inferences
tenant on July 1st or any other date since then. which can be fairly drawn from these facts.

Under “opponent’s rebuttal,” plaintiff indicates • Is built on facts not subject to much, if any,
that tenant alleges she mailed the rent on June dispute, such as documents that speak for
28th. themselves, admissions against interest,
testimony from independent, reliable witnesses
14. Identify the “cast of characters” in who have no stake in the case outcome;
the case. undisputed evidence from other areas. For
For each person or institution, list their strengths example, assume undisputed evidence exists that
and weaknesses and any additional information a consulting physician who finds that a disability
you need about them. claimant is not disabled examined the claimant
for only 10 minutes. This evidence strengthens
• Character the client’s credibility and most likely becomes
• Strengths part of how the hearing officer reconstructs the
• Weaknesses way in which the administrative agency handled
• Information the claimant’s case.

Err on the side of including all key players in the • Is not inconsistent with some incontestable
case including institutions and groups. fact. A theory premised on the notion that the
claimant visited certain doctors when the
15. Identify your theory of the case. evidence indicates that she hasn’t is not a good
theory. A different theory must be developed
16. Identify the opponent’s theory. which recognizes the existence of incontestable
At this point you have developed your legal facts and provides a means for the recipient to
theories of the case. From the material and prevail.
evidence initially available, you must begin to
develop a notion of how a particular course • Takes into account and explains away as
of events might have happened — a theory of many unfavorable facts as possible. It is rare
the facts of the case. The theory of the facts must that clients present a clean set of facts where no
be grounded in your legal theories and the two facts are unfavorable. Those clients will not
enmeshed to formulate the theory of the case. need your help. As a result the theory you
develop must take into account the unfavorable
Your case theory describes how you want the facts and have built into it an explanation for
trier of fact to view the case. This picture them. To be believable the theory has to explain
involves combining your legal theory and your their existence and has to be one which the trier
theory of the facts. It is a dramatic appeal based of fact can reasonably believe.
upon the equities that appeal to the trier of fact’s
beliefs about what is right and what constitutes • Is accepted by the trier of fact without
fair play. having to stretch the imagination—it is
grounded in common sense and is consistent
A natural impulse is to rehash the facts and law with what the trier of fact knows about how
developed in the preliminary analysis and to things happen in the world. If it is too involved

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and requires too much imagination or belief in • Determine Sequence
the way things are that is not generally accepted, • Identify Problems
it has little chance of being accepted. • Discovery Method
• Begin
This grounding in common experience is often • Complete
the most difficult for advocates representing • O’s Response
clients with little or no funds and living in poor • Rebuttal
communities. It can be difficult to convince a
judge a set of circumstances which are particular 20. Do case workplan
to the life situation of our clients but not • Identify the tasks that need to occur
generally found in the life situation of the trier of • Identify who will do what
fact. • List the support needed to accomplish the
tasks
In developing a theory consistent with this • State completion dates (over estimate)
concern, you have to take into account this
difference in perception and may well have to
adopt the theory to deal with it. Advocates who
fail to consider this are often surprised when a
theory that seems very straightforward is not
accepted by the trier of fact, because they find it
unbelievable.

• Is not based on wishful thinking about any

aspect of the case. The theory must be
consistent with the facts and law which actually
exist, not on what you wish they them to be. At
the same time, you must be creative. The history
of legal services is full of creative theories,
instances where the facts supported the theory
being developed and there was reason to believe
that the law could be developed in a certain way.

17. Identify the forum where you will bring

the case or whether the forum can or
should be changed.
If a choice of forums exists, some factors to
consider are: resolution time, sympathetic
judges, availability of jury trial, availability of
discovery, available relief, and complexity,
sophistication of procedures.

18. Identify any provisional relief and

motions that you will bring or anticipate
the opponent bringing.

19. Do a discovery plan.

Building on your Step 13 Preliminary Fact

Analysis:
• Select the way each fact will be proved

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Legal Services Practice Manual: Skills 8 Benchmark Institute