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GENERALLY
Developing a theory of the case is one of the most important tasks you perform in preparing for an arbitration hearing. The case theory is the strategic plan for achieving your goals in arbitration. Development of a case theory begins after you learn the initial facts through interviews and informal investigations.1 Throughout the preparation and presentation of the arbitration case, the theory of the case will be revised and updated as more information becomes available.
The theory of the case provides a tactical structure serving as your organizing principle for the arbitration hearing. A properly developed theory of the case will provide guidance for every action-from investigating, interviewing, selecting witnesses, preparing an opening statement, selecting exhibits, examining witnesses, and preparing closing arguments.
In developing a theory of the case, you must understand both the development of the legal theories and the factual theories of your case and your opponent's case. The legal theories and factual theories are interrelated, and linked through law, information, and the client's objectives.2 The legal theory is the legal framework developed from review of applicable rules and standards, including statutes, regulations, contract provisions, and case law. The factual theory is the party's story, justifying relief under the legal theory and based on the information and inferences from that information.3
Your theory of the case must maximize your opportunity to win.4 You should try to turn the difficult facts to your advantage. You do not want the opposing party to set the agenda. In developing your theory of the case, however, you must always keep in mind the goals and objectives of the client.
THE LEGAL THEORY
The legal theory shows why, as a matter of law, the party you represent should prevail.5 In determining your legal theories, you must consider legal principles, contract provisions, and other authority applicable to the dispute. The legal theory must take into account the legal requirements for the claim or defense, and identify the evidence required to establish each element.6 Development of the legal theory may require you to research judicial decisions, administrative rulings, prior arbitration awards, and contract language.
In order to develop the legal theory, you must learn as much information about the case as you can. You must take into account...