A Black Swan Inspired Theory of the Case


When I was a summer associate after my 1L year, all the way back in 2014, I was called into the National Co-Chair’s office for an assignment. After informing me that he’d taken a new case, he explained that there are three fundamental concepts that a lawyer must determine, yet constantly hone and redevelop, at the start of each litigation: strategy, tactics, and theory of the case. The last concept is my focus today.

            This familiar idea, constantly revolving around the litigation process, is simple, yet difficult to pinpoint in any exactitude. While there is much commentary in law reviews, legal journals, and the web on the concept, I had not delved into it rigorously, or really understood it well, until it was explained thoroughly in the book Successful Civil Litigation by George Vetter. It was only upon reading Vetter’s book that I realized its importance and how it may be achieved. However, it was only after reading Black Swan by Nassim Nicholas Taleb that I understood why.

The Theory Explained

            Before I explain the reasons why the theory of the case is successful in litigation and at trial, its important to understand exactly what the theory is and how it is achieved

            The theory of the case is simply a detailed, coherent, accurate story of what occurred, and it should tell your client’s story logically, and in a concise manner. Once correctly constructed, it will help communicate a compelling story to potential jurors. And it is this story that will nudge the jury to accept one party’s portrayal of various disputed inferences—based on undisputed facts—so that a favorable result is reached.

George Vetter’s six hallmarks of a “Winning Theory”:

  1. It must have a firm foundation in strong facts and allow fair inferences to be drawn from the facts;
  2. The theory should be built around the so-called high cards of litigation, incontestable or virtually incontestable facts, such as self-certifying documents, patently undoctored pictures, admissions against interest, the testimony of independent witnesses, clear scientific facts, and so on. The principle behind this rule: the jury reconstructs what happened from the evidence. Often the evidence is in sharp conflict. Naturally, then, the jury will seize upon the facts that seem fixed and certain and true. These facts then serve three functions. They, themselves, become part of the foundation for the jury’s reconstruction. They become the means by which the jury tests other facts and inferences. And they become the basis for the inferences;
  3. The theory should not be inconsistent with, or fly in the face of, incontestable facts;
  4.  The theory should explain away in a plausible manner as many unfavorable facts as it can;
  5. The theory should be down-to-earth and have a common-sense appeal. It must be readily acceptable by a jury; and
  6. The theory cannot be based on wishful thinking about any phase of the case.

            Thus, a theory with these components serves evidentiary functions, discredits and explains away the opposing sides telling of the facts, and allows the jury to follow along so that a logical result is reached. It is this last function that I find interesting: why does a logical narrative play such a dynamic role in persuading the jury; if the evidence is there, the burdens are met, why do we need simplicity, narrativity, and logical story-telling to reach the conclusion? This is where Taleb’s concept comes into play.

Nicholas Nassim Taleb’s Narrative Fallacy

               The Narrative Fallacy concerns our susceptibility to overinterpretation and our preference for compact stories over raw truths. Our preference for narrativity effectively distorts our perception of the world, and this becomes particularly problematic when ascertaining and understanding events—in his book, Taleb was chiefly concerned with Black Swan events, which are unpredictable occurrences with enormous consequences that are inappropriately rationalized after the fact.

            Narrativity does this by integrating facts into a logical link, or an arrow of relationship. And while this appears useful, it becomes a problem when organizing facts this way increases our impression of understanding and simplifies the world, thus skewing our perception of Black Swans and events of wild uncertainty. Here is a simple example of the fallacy from the book:

            If I asked you how many cases of lung cancer are likely to take place in the country, you would supply some number, say half a million. Now, if instead I asked you many cases of lung cancer are likely to take place because of smoking, odds are that you would give me a much higher number (I would guess more than twice as high). Adding the because makes these matters far more plausible, and far more likely.

            Thus, adding causality to the equation and crafting a narrative can unjustifiably affect our understanding of facts. But for my purposes, in explaining the theory of the case, the narrative fallacy is an excellent tool of which to take advantage.

            Weaving together facts and conveying an arrow of relationship in litigation is critical because it not only makes the facts more memorable but also helps them make more sense. Taleb explains a few neurochemical and psychological reasons for why human organize information in this way, but, fundamentally, it has to do with retrieving and storing new information in our mind: “the more orderly, less random, patterned and narratized a series of words or symbols, the easier it is to store that series in one’s mind or jot it down in a book.” Therefore, narrativity helps us store information in a memorable way.

            Another interesting side-effect of the narrative fallacy is that once a narrative is established, our minds work activity to solidify that narrative. We tend to more generously remember those facts from our past that fit our narrative, “while we tend to neglect others that do not appear to play a causal role in that narrative.” We revise these causative narratives involuntarily and unconsciously and re-narrate in a way that conforms with the already-established narrative.

            Accordingly, one party’s production of the best evidence, the most effective direct and cross examinations, and the greatest demonstrations at trial may not play that persuasive of a role, so long as the opposition tells a more compelling causal narrative that explains how the events occurred in a logical and plausible matter. And once that narrative is established, the judge and jury will constantly find facts and evidence that support that narrative, and do away with those that don’t. In other words, trial may over before all the evidence even comes if during Opening Statements one party establishes the type of narrative Taleb highlights.

            Taleb provides a method for side-stepping the ills of the narrative fallacy, which is to “favor experimentation over storytelling, experience over history, and clinical knowledge over theories.” But when advocating your theory of the case, flip those prescriptions on their head and create the most plausible, logical, arrow-like narrative you can. The judge and jury will be at the mercy of their cognitive predilection for narrativity, and you will be well on your way to litigation success.

 


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