How to Find the Strengths and Weaknesses in Your Case

When you find yourself in battle, it’s important to know the strengths and weaknesses of your opponent. Same goes for civil litigation, except the strengths and weaknesses that matter are those of the claims and defenses involved in the case. It doesn’t matter if you’re the plaintiff or defendant. You’ll want to analyze your case from both sides to map your winning strategy. Let’s say you’ve been sued for an unpaid debt. You hired a painter to paint your house and he did a crappy job. You paid him half price and told him he was lucky to get it. He took your check — noted “Paid in full for crappy painting job” — and cashed it, then sued you for the other half.

Is the complaint up to snuff?

Your first order of business is to locate the elements of a claim for unpaid debt. The plaintiff is essentially claiming that you violated a contract by not paying as agreed for the house painting job. According to your research, the elements for breach of contract include a valid contract, performance of the plaintiff’s duties under the contract, nonperformance of the defendant’s duties, and damages to the plaintiff arising from the defendant’s nonperformance. In other words, the claim against you states that you and your house painter agreed that you would pay a specified amount for his service. The painter painted your house, you refused to pay, and he lost money as a result. Once you know the elements, the next item of business is to review the complaint to determine whether all of them are present. Does the complaint allege facts supporting each element of a breach of contract claim? If not, queue a motion to dismiss the complaint for failure to state a claim. If the complaint lists the necessary facts, determine whether the evidence for those facts is in the record of the case (attached to the complaint, for instance), or whether you’ll need some discovery to get it and find defects. Is the written contract unsigned? Does the receipt have the wrong date or amount? That sort of thing. Your goal as a defendant is to throw mud at the plaintiff’s case by casting doubt on the evidence supporting any element of the claim. Your house painter will likely produce either a written contract signed by you or an affidavit that says you orally agreed to the contract terms.

Does the answer raise a defense?

Now let’s look at your side of the case. You answered the complaint and admitted the existence of a contract, but you denied that the plaintiff performed his duties and that your failure to pay caused him any damages. You also asserted an affirmative defense of accord and satisfaction. Essentially, your position is that you and your house painter made another contract to replace the first, and there was no breach of that contract. You offered to pay half for the crappy paint job, and the painter accepted the new contract when he cashed the check. Again, finding the elements is the first thing to do in analyzing a defense. Accord and satisfaction has the same elements as breach of contract, except for damages. In other words, an accord and satisfaction defense states that the plaintiff’s nonperformance on the first contract led to a bona fide dispute, but a replacement contract between the parties made everything copacetic. Both sides did what they were supposed to do, nobody got hurt, and it’s all just peachy keen. Again, once you know the elements of your defense, you want to be sure you’ve alleged facts to support each element. You then need to determine what evidence is available to support those facts. In this case, you have to prove that you disputed the quality of the painting job and that the painter cashed your check, thereby accepting a revised contract. Your affidavit, along with the cancelled check, should be enough to get a judgment in your favor. It won’t hurt to provide pictures of the paint job.

A recipe for success

In summary, you should analyze your case to find the strengths and weaknesses that help you win. There are three parts to the analysis — the complaint, the answer, and any affirmative defenses. Evaluation of cases can get much more complicated, but here is a simple strategy for staying ahead in your case:

Review the complaint to identify the type of claim or claims.

• Identify the elements necessary for each claim.
• Identify the alleged facts supporting each claim element.
• Identify the evidence produced or needed to prove each fact that supports a claim element.

Review the admissions or denials in the answer.

• Determine which claims or claim elements remain in dispute.

• Identify the evidence produced or needed to disprove each disputed claim element.

Review any affirmative defenses to identify the type of defense or defenses.

• Identify the elements necessary for each defense.

• Identify the alleged facts supporting each defense element.

• Identify the evidence produced or needed to prove each fact that supports a defense element.

If there is a counterclaim, you’ll analyze it the same way — counterclaim, an answer to it, and any affirmative defenses pled by the plaintiff. Here’s the takeaway: case analysis is not a one-time event. Follow this recipe at each step in the case because each new filing can change the strengths and weaknesses on either side. It’s the best way to maintain a litigation strategy and to chart your path to victory. What techniques have you used to evaluate cases in the past? Leave a comment below to share your methods.

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The Effective Pro Se Litigant — Ingredients and a Recipe How to Analyze a Civil Case and Craft a Litigation Strategy, Part 1