Shane B.

Miquiabas

Practice Court 1 - B

Chapter 4

1. Theory of the case explained.

 The lawyer must form a definite concept of the problem at hand, which he elects to
proceed to build the case.
 The theory of the case as explained by the late Atty. Vicente J. Francisco refers to the
particular line of reasoning of either party to a suit and aims to bring together certain facts
of the case in a logical sequence and correlate them in such a manner as to produce in the
mind a definite result or conclusion that the advocate believes entitles him to the Court
judgment based on certain principles of law.
 The theory constructed lies at the very foundation of the case, and does not end in the
trial court; it must be faithfully adhered to on appeal.
 A lawyer should study the facts involved in a case and the law applicable because facts
alone are meaningless and legal principles alone are without significance. After
considering the facts and the law, he should form his own theory of the case.
 If he is convinced that he is on the right trail, he must proceed on his way and let the
Supreme Court have the final say on the matter.

2. Importance of the theory of the case.

 The entire structure of the case in the lower court and on appeal rests upon the theory of
the case.
 The theory of the case must govern not only the pleadings but also the trial itself with
regards to introduction of evidence, request for instructions, or in the argument to the
court.

3. Choice of a theory.

 A choice between tort or contract is frequently to be determined by the question of proof;

that theory should be adopted under which it is most easy to prove the case. The choice of
a theory may be determined by the fact that the period within which the cause of action
on contract would be barred differs from the period within which an action in tort, arising
out of the same facts, would be barred.
 Sometimes a fact essential in one theory cannot be proved, whereas under the other
theory all the essential facts can be established.
 Most commonly, however, there is really no choice, and among a number of apparent
theories only one is legally tenable.
 Many a case is lost which might have been won, had the suit been brought on a different
theory.
 Upon the lawyer’s success in selecting the proper theory will very often depend the
success or failure of the case.
4. The provisional theory.

 It is best to formulate a hypothesis or provisional theory to be used as starting point for

the search of authorities.
 This hypothesis may later prove to be erroneous and inapplicable and may require the
resort to an entirely different theory. The hypothesis must be but a guess, and its only
function is to give a definite direction.
 The formulation of a provisional hypothesis requires a careful and discriminating analysis
of the facts and law. The more carefully this provisional hypothesis is searched for and
tested, the more certainly will the investigation of the case along the lines indicated by
such hypothesis lead to the theory sought.

5. Law of the case.

 The preparation of the law of the case means the practical application of theoretical
knowledge of the law to a searching analysis of facts, then apply the knowledge in
obtaining favorable citations of authority.
 Preparation of the law consists of:
a. The recognition of the various propositions involved in the case; that is, all the
elements necessary to prove the cause of action.
b. The recognition of the questions of law involving the method of proof or evidence
to be adduced.
c. The finding of favorable authorities which support his position, rather than
general statements of the law.
d. The anticipation of all propositions of law that may be relied upon by his
opponent.
e. The securing of authorities which show that opponent’s contentions are not
tenable nor well-founded in law.
f. The preparation of an outline of all questions of law involved.