Proving Your Case: Theory v. Reality

A theory is likely the most important step at the beginning of a personal injury matter.  The theory must be developed early since it is the blueprint from which to develop a case.  A theory will determine how the case is handled, what claims to make, witnesses necessary to call, experts to be called and what documentation to rely upon.  None of these decisions can be made intelligently without a theory.  Essentially, the purpose of a theory is to simplify the trial of the matter in order to obtain a favorable result.  Without a theory, a case will simply become unwieldy and disorganized. 

Once a theory is developed, the next step is to obtain evidence to prove the theory.  A theory is fine but the evidence, upon which findings of fact are made, is what is ultimately necessary to prove the claim.  I have encountered many injured parties who have theories on why their injuries will impact them into the future and affect their lives.  However, the major problem facing these individuals is that they often mistake theory as fact.  Without the evidence to establish facts, a theory cannot be proven.  This can often lead to catastrophic results at trial. 

It is always important for counsel to clearly convey to a client, as soon as is practicable, what the theory of the case will be.  However, it is also important for counsel to convey to the client that theory is not reality, but the lens through which to prove the claim.   Without the evidence to support the theory, the chances of success decline.  Thus, it is imperative to let a client know not to become attached to a theory and assume that the theory is fact, and to consistently ensure that this is reinforced with clients. 

As a final note, it is not uncommon that the theory can change during the life of a claim.  Evidence may come to light that impacts the theory adversely or may lead to an evolution in the theory for the better.  At all times, a lawyer must ensure that the client is well aware of the impact on their claim and what steps can be taken to ensure that claim is resolved successfully.

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