Theory of the Case

“A logical persuasive story of “what really happened”

Mauet & McCrimmon, 2nd Edn

The most plausible explanation when youTake all of the undisputed evidenceTake all of the disputed evidence that is accepted

at the trial after comparing each party’s evidence

Theory - Sources

Charges Show Cause Letter Show Cause Reply Prosecution and Accused Employee’s Documents Photographs Interview Statements (if presented as evidence) The chronology The applicable law

Theory of the caseThe Steps Review the elements (In Charges) Decide whether each element is proved through

available witnesses and exhibits Determine what facts are in dispute (see Show Cause

Letter, Show Cause Reply and DI Notice) What contradictory facts are available to the other side Assess the each party’s witnesses and exhibits that it will

present Identify the strengths and weaknesses of each party’s

case

Theory - Structure

Identify the main issues What stand or position is taken by each

side on the main issues? What are each side’s best points in support

of the stance it has taken on the main issue Identify the opposing theory (or argument)

of each side

Theory - Conclusion

THEN:

Determine which side has a logical and persuasive story of “what really happened”

The conclusion becomes the basis for you’re the decision / report

Examination in Chief

PurposeGet an account of the witnesses’ story In a clear and logical progression

Examiner’s aimFacilitate the unfolding of the story for the

court

Evidence of witness

Elements of the side’s case Which facts regarding which element does this

witness have knowledge of? Witness Chronology Identify the topics for each witness Exhibits Consider organisational charts or other visual

aids to examine the the story

Witnesses

Introduction of the witness to the panel (credibility)

What is the witnesses’ connection to the case?

Try to visualise the scene or event

Open questions

Allows the witness to tell their story in a narrative form

Allows the chairman to hear the story without interruption

The focus is on the witness The witness sounds more credible “What happened at the board meeting between

yourself and Mr Tan on the 10th October last year?” (Assuming that the examiner had laid the foundation that a meeting took place)

Closed questions

Questioner has more control Focuses on a single item or subject Limits the scope of the answer

“What time did you leave the board meeting that afternoon?”

“Where did you go immediately after you left that meeting?”

Relevance and leading

Relevance: Questions must bear directly or indirectly on the facts

in issue. The questioner asks himself “How will I use this answer to this question in my submission?”

Leading: “W” questions: Who, what, when, which, where, why How

Cross Examination (1)Aim Control the opponent’s witness Deny them the opportunity of:

1. Volunteering information you don’t want

2. Supplying information that is not sought

3. Repeating their evidence in chief

Cross Examination (2)Objective Obtain facts or concessions that advance

the questioner’s case Obtain facts or concessions that damage

the opponent’s case Damage the credibility of the witness Damage the credit of the witness

Cross Examination (3)Disputed facts Must cross-examine on disputed material facts If not challenged, treated as not disputed Use “put” questions to state conclusions for the

panel’s consideration “I put to you that you injured him” I put to you that you did not get any approval for the

leave”

Cross Examination (4)Contents of questions Essential elements of each sides’ case Facts in issue from Show Cause reply and

Charges What parties have to prove in order to win the

case Points that each party will integrate into and

support the case theory Logical and does not defy common sense

Re examinationAim Reconcile discrepancies between EIC and

CE Clarify uncertainties arising from CE Explain evidence in CE which is damaging

to your case or the witnesses’ credit

Re examinationRules – Cannot Lead new evidence (i.e. questions not

touched on in CE) Ask leading questions

Re examinationTechnique Refer the witness to what he/she said in

CE Invite the witness to clarify / explain the

answer that they gave

Submissions -Objective To persuade the Chairman accept each

party’s case To summarise the facts of the case To link the facts with the relevant law To apply the facts and the law to support

your theory of the case

Submissions –Ingredients Identify the documents, witnesses and

exhibits Summary of the factual context Deal with the undisputed facts Identify the issues to be decided Establish the facts from the conflicting

evidence

Submissions –Ingredients (cont.d) Analyse the evidence of the witnesses – rely on

presumptions and available inferences Deal with the documentary evidence Identify corroborating evidence Relate the applicable law to the facts at hand Draw conclusions from the facts and the law