MARJORIE S PADILLA

Theory of the Case

Introduction

A successful trial lawyer should posses a very important tool that

determines his approach and strategy in establishing the case for the plaintiff or

prosecution as well as in establishing also the defense for the defendant of the

accused after a thorough study of the facts and the law applicable to the case and

after summoning all his brilliance, experience and talents in the art of advocacy.

This tool is known as the theory of the case.

Definition

Theory of the case is defined as the formulated framework of action, legal

approach, course of action or strategy adopted in behalf of a client involved in

litigation after a thorough study of the fasts and the applicable law which sets

forth a more plausible version of the controversy which is legally sustainable

during the trial or on appeal. In a broad sense, the theory of the case is how you

hope to win the case. It is your plan of action. It is the perspective you want the

jury (or judge) to view the case from. It is your formula for persuading the jury to

find in your favor. It is the persuasive theme you integrate the case with.

Importance

The importance of the theory of the case is that it is the very framework or

the very skeleton of the whole case and upon it will depend the rise and fall of a

clients cause of action. Many trial lawyers are of the view that with a good theory

of a case may be considered as half-won.

Two Aspects of the Theory of the case

The theory of the case for the plaintiff or the theory of claim is that the

facts of the case which cannot be rearranged or fabricated and the built-in
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limitations obtaining in the court or forum where the action is brought. The

counsel for the plaintiff or proponent has wider latitude in initiating the action or

the option to choose his course of action, whether to institute civil or criminal

action or both, the kinds and amounts of damages, the parties to implead, the

venue to avail of, provisional remedies to apply for, if any and the like

The theory of the case for the defendant/accused or the theory of the

defense will simply depend upon the facts and circumstances of the case. The

counsel for the defense must formulate his theory of defense within a given

period and based only upon the kind of complain or information filed against his

client.

Benchmark of a Winning Theory of the Case

There are six benchmarks of a winning theory: First, the theory must have a

firm foundation in strong facts and the fair inferences to be drawn from the facts;

Second, if possible, 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, admission against interest, the

testimony of independent witness, clear scientific facts and so on; Third, and as a

corollary of the second bench mark, the theory should not be inconsistent with or

fly in the face of incontestable facts; Fourth, the theory should explain away in a

plausible manner as many unfavorable facts as it can; Fifth, the theory should be

down-to-earth and have a common sense appeal; and Sixth, the theory cannot be

based on wishful thinking about any phase of the case.

The theory of the case should show fidelity to the facts of the case. It must

be formulated within the parameter and limitations of the actual facts of the case.
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A theory cannot be anchored upon omitted, added or fabricated facts. This would

be fatal to the cause of the client.

Theory of the Case and Amendment of Pleadings

In Civil cases, the legal provision regarding the amendment of pleadings is

found on Sec. 3, Rule 10 of the New Rules of Court Amendments by leave of court

which states that after the case is set for hearing; substantial amendments may

be made only upon leave of court. But such leave may be refused if it appears to

the court that the motion was made with intent to delay the action that the cause

of action or defense is substantially altered. Generally, substantial amendments

may be allowed by the court, the exception is that the substantial amendment is

refused if they substantially altered the cause of action or defense.

In Criminal cases, the amendment of complaint or information is allowed

under Rule 110 in the Rules on Criminal Procedure which states that the

information or complaint may be amended in substance of form without leave of

court, at any time before the accused pleads; and thereafter and during the trial

as to all matters of form by leave and at the discretion of the court when the

same can be done without prejudice to the right of the accused. Substantial or

formal amendment of the complain or information may be made at any time

before the accused has entered his plea or even the accused has already entered

his plea but only as to matter of form and when the same can be done without

prejudice to the rights of the accused. But as to substantial amendment or that

which changes the nature of the offense of the theory of the prosecution, the

same cannot be sanctioned even with leave of court.

Rationale of the Rule against Changing Theory of the Case

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Alteration of the theory of claim or defense is anchored upon due process

or the need to give the opposing party the opportunity to properly meet the claim

or counterclaim of the parties. It has been ruled that the plaintiff will not be

permitted to change the theory of his action upon a motion for rehearing. To do

so would be to deprive the defendant of the opportunity to defend themselves

and it violates their constitutional right to be informed before the trial of the

specific charges against them.

Brief Review of Some Important Supreme Court Cases on the Amendment of

Pleadings and/or Theory of the Case

In the case of Molina vs Somes, the Supreme Court held that When the

plaintiff deliberately adopts a certain theory with respect to the basis of his right

of action, and the case is tried and decided in the court below and in this court

upon that theory, plaintiff will not be permitted to change the theory o his action

upon motion for rehearing.

In Toribio vs Decasa which the High Court observed that: Unless special

reason exist, courts of appeals are not inclined to consider questions raised for

the first time before them where there was an opportunity to raise them in the

court of origin. This constitutes a change of theory not permissible on appeal.

In Surigao Mine Exploration Co Inc vs Harris et. Al, a new theory in lieu of

the one initially advanced is not allowed for in effect, it is not amendment but

substitution of theories.

In the case of Jimenez vs Bucoy, the Supreme Court states that, In order

that a question may be raised on appeal, it is essential that it be within the issue

made by the parties in their pleadings. Consequently, when a party deliberately

adopts a certain theory and the case is tried and decided upon that theory in that
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court below, he will not be permitted to change his theory on appeal because to

permit him to do so would be unfair to the adverse party.

Conclusion

A trial lawyer cannot afford the luxury of a mistake in the formulation of his

theory of the case because once the issues are joined or the hearing progresses

and much more on appeal, he cannot anymore abandon or substantially amend

his theory to meet an adverse development in the case. There is a need for

consistency in adopting the theory of the case from the lower court to the

appellate courts.

Indeed, the value, function and effectiveness of the theory of the case can

insure victory in a case.