Emond Montgomery Publications
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Emond Montgomery Publications
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• Your theory of the case: a view of the facts and law that can justify a favorable decision for your client
• Include all the facts of the case that are not in dispute and your version of facts that are in dispute
• Facts must constitute a valid cause of action or a valid defence
• Your theory of the case must apply the relevant law to the facts of your case

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Gather the Facts : objective facts are the most valuable
Identify the Legal Issues : determine the area of law involved
Find the Relevant Law : substantive law defines the elements of a civil cause of action or the elements of a criminal offence as well as any available defences
Put Relevant Facts into Evidence : what evidence is required to prove each fact? How will evidence be produced at a trial or hearing?
Assess Your Case : identify strengths and weaknesses of your theory
Assess Your Opponent’s Case : anticipate your opponent’s theory of the case

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1.
Preparing
• Review the pleadings in the case
• Familiarize yourself with the legal issues
• Read over statements from other witnesses or your client
2.
Listening
• Show you are paying attention
• Paraphrase feelings
• Paraphrase/summarize content
• Clarify

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3.
Questioning
• Obtain more details, background information, explanations
• Clarify ambiguities/contradictions in the story
• Determine the relevance of aspects of the story
• Confirm witness’s qualifications by testing their competence to testify , credibility , and bias
• Use different types of questions:
• Open-ended questions
• Narrow questions
• Yes/No questions
• Leading questions

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4.
Concluding
• Get the witness’s contact information
• Thank the witness for participating
5.
Creating a Witness Statement/Note-Taking
• Take notes as you conduct the interview
• When you are finished, organize the witness’s story and set it out in a witness statement

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• Alec Baldwin :
• The Feys discussed a kitchen renovation including installing pot lights
• Tina Fey was told pot lights are $250 ea. and that the Feys would need only 5
• If Tina Fey wanted, more could be installed, but 5 would be enough
• $7,500 was agreed to and the $2,500 deposit was paid
• The job was finished within a week; the Feys seemed happy
• The bill was $8,250: $7,500 + $750 for 3 extra pot lights
• Stephen Baldwin :
• Alec negotiated a contract with the Feys to renovate their kitchen
• When pot lights were installed, Mr Fey asked for 3 extra lights
• Money wasn’t discussed; the Feys seemed happy with the work
• They asked about the extra $750 on the bill
• They said the contract covered “all necessary lights” and wouldn’t pay more than $7,500; we received a cheque for $5,000

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Gather the Facts of the case
• After interviews: plaintiff’s advocate prepares a summary of the facts
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Identify the Legal Issues Raised by the Facts
• Whether the Feys breached the contract
• Whether the contract price included 5 pot lights or “all necessary lights”
3.
Research and Find the Relevant Law
• Common-law principles of contract law apply
• The courts interpret contracts based on the words they use
• Each party must persuade the court that his or her interpretation of the contract is the correct one

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How Will You Put the Relevant Facts into Evidence
• no documents: the contract was oral
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Alec’s testimony
Stephen’s testimony
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Assess Your Own Case
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• Alec will give evidence that the contract provided for 5 pot lights only
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Unlikely for a contractor to agree to provide an undefined number of lights
If “all necessary lights” were agreed on, the plaintiff maintains that 5 lights were all that was necessary
Assess Your Opponent’s Case
• The defendants could persuade the judge to accept their version of the terms of the contract, and that eight pot lights were necessary to make the kitchen bright

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• Tina’s Statement:
• I met with Alec Baldwin about renovating my kitchen
• I told him I wanted to replace the existing lighting with pot lights
• He said: pot lights cost $250 ea., he’d install the necessary number (5) of lights as part of the contract price; if we needed more they’d install more
• I paid the ($2,500); they finished within a week; the work was great
• We got a bill for $8,250, instead of $7,500; Mr. Fey dealt with the bill
• Tommy’s Statement:
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Mrs. Fey negotiated a contract with the Baldwin Brothers
I asked for 3 more pot lights to provide enough light; we didn’t discuss money; the work was great
• The bill was $8,250; I asked about the extra $750 and was told it covered 3 extra pot lights
• All lighting was included in the original price; I paid $5,000

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Gather the Facts of the Case
• After interviews: defendants’ advocate prepares a summary of facts
2.
Identify the Legal Issues Raised by the Facts
• Whether the defendants are contractually obligated to pay $750 above the original contract price
• Whether the contract price included 5 pot lights or “all necessary lights”
3.
Research and Find the Relevant Law
• Common-law principles of contract law apply to this case
• There is a contract between the parties. This is an issue of interpretation

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4.
How Will You Put the Relevant Facts into Evidence
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• no documents: the contract was oral
Tina’s testimony
Tommy’s testimony
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Assess Your Own Case
Tina will give evidence that the contract provided for “all necessary lights”
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Alec merely suggested that 5 would be enough
The main concern was the kitchen’s brightness, not the number of lights
Assess Your Opponent’s Case
A judge may accept Alec’s version: it is unlikely that a contractor would agree to provide an undefined number of lights.
If it is decided that the contract was for “all necessary lights,” the judge may not be persuaded that 8 lights were necessary