TO: ________________
FROM:_______________
RE: Theory of the Case Memorandum
A theory of the case is a working hypothesis of how the law and facts will fit together to support the result sought by our client.
The statement of facts should include, in addition to a statement of those facts presently known, a statement of those facts that need to be developed.
The statement of law is a summary explanation of why specific legal authorities compel a decision in our client's favor on the basis of those facts.
Although it is to be stated in detailed and definite terms, the theory of the case is necessarily provisional, and may be revised and refined as fact development proceeds.
In writing the theory of the case memo, you must begin with one or more overarching statements of what we will ask the court to hold.
For example, in an age discrimination in employment case, an overarching statement of the plaintiff's case theory might be:
The defendant employer is liable under the Labor Act for damages, injunctive relief, and attorney's fees for having terminated our client because of his age.
Our client will make out a prima facie case based on the facts that he was in a protected age category at the time of his termination, was qualified to perform the job, was replaced by a younger person, and was terminated in a work force reduction that disproportionally impacted persons over 40 years old.
Defendant's effort to establish that our client was unqualified to perform the assigned work will fail to rebut the prima facie case.
Next, each element of the case theory must be identified.
Any legal principles that affect an element of the case theory must be briefly analyzed.
Known facts that support an element of the case theory must be stated and facts that need to be developed must be identified.
In the preceding age discrimination example, this analysis would be as follows:
1. Element: A showing of disparate impact alone establishes a prima facie case of age discrimination.
2. Analysis: _____ vs. ______., the Supreme People's Court held that disparate impact alone establishes a prima facie case of race discrimination, because it raises a permissive inference with regard to protected class. The same analysis should apply in age discrimination cases, because of congressional intent to create a protected class.
3. Known facts: 12 of 20 persons terminated in plaintiff's department were over 40 years old.
4. Facts to be developed: age distribution of defendant's overall work force reduction and remaining work force.
