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Sxoau4y, 219 Wo Stay ONT a opdood og) Jo oouBIyTUIG “KL § 6eu 4 ‘686159 YO "8a wsouqoor} 9 BREIL IO mEIC "sa UIE (a 2,4 08613 VO) "6 eDOpHS 1 89 199) oquedr] SA “9U] 0) F UOSIOIN CD 1489610 DUR sA-BNEHS & I9BTIO HOMIE, sa Ido (9 woUo1DIsOY Y :asDD ayp fo 6IL TOOL Ve MAMWLLAAS ‘10% ‘ss ana ang MOK BORNE (AM) 99, ETT pUE G eeL “6 “1H6rJ0 ‘NOW 01 ¥Z6TJ0 DepIAnEN A seit 9m Jo A20941, TA § "9649 949 Jo K10oK TurHUI e Jo SEIUEOW A tp Jo oouepzodwy ‘Oa, “pougacy ase op) Jo A109 LNGIVELVESEL V -ASVO HELL AO ANOWHL NOILVLONNY duouaynrsoy Y:90n9 ayy720 SUPREME COURT REPORTS ANNOTATED, ‘Theory of the Case: A Restatement se of icardlo Rio, G.R. No. 90294 promulgated September is am appeal of the de ‘was the pronounced shift of defense they are based opted to discuss this which has not bee his then gives us the proper occasion to restate those prevai ing views of authorities on the subject of theory of the case, its importance in legal proceedings and some holdings of the Su- preme Court on the matter. {IL Theory of the Case Defined thorities have their respective definitions of the “theory of the case”, but while stated somewhat different they are virtually in unison as to its underlying general Let us start with the late Don Vicente J. Francisco, that leges ‘numerous lawbooks mind a definite result which the advocate belioves entitles him to the or decree of the court, in view of the application to ique and Practice Court, p. 52; 1955 ci American Advocacy, p. 7). In the same book, Atty. Francisco cited amore succinct definition of the torm as a“eomprehensive ‘derly mental arrange it Theory of the Case:A Restatement al criterion upon ind of action may be under- ‘sand the law involved in thors lawe aot foecaly | merely dese the term som New York Ba views it as a 1970 Ba). Irving 19307 gave the mean- Uneoritical knowledge of the law facts in order to determine the legal ques then apply the knowledge obtained” (Trial Technique, p. 53; 1935 Ed),URT REPORTS ANNOTATED ‘Theory of the Case: A Restatement on trial practice, the theory of t jons and deseriptions of the nature of ore functional defini (1 V.J. Francisco, Trial Tech: Another author views the theory of the case as a framework around which the whole fabric of the case will have to be woven. Upon it will depend the vise and fall of a client’s cause (Arturo Balbastro, ‘Trial 'Tech- nique and the Practice of Law, p. 26; 1989). ‘The late Atty. Jacinto, a distinguished professor on Evidence of this writer at the UP College of Law, noted that a theory precedes any legal action. the theory must form the skeleton or ;he complaint or answeras the case may be and of the * demonstrates that if Atty. Bel aPTEMBER 24, 1991 723 Theory of the Case: A Restatement Practice, p. 40; ings therein, (In Ifonly to underscore the importance of a theory of the ease, we are reminded of an account of a very difficult case handled by Atty, Melvin M. Belli, a noted American trial lawyer based in San Franciseo and dubbed ae the “King of Torts”. This was known as “he Cutter Labs ‘Poison Vaccine’ Case”. This was suit for damages filed against the Cutter Laboratories, a wufacturer of the Salk Vaccine, on behalf of these n who suffered infar proposed hy Atty. I nd his partners agreed that they would use liable for breach of warranty. 1e breach of warranty count was upheld (Averback and Price Ed. “The Cutter Labs ‘Poison Vac cine’ Case”, in Great Courtroom Battles, p. 6 erated upon a probable and would have relied upon only the negligence count— have been fatal. With the formulatio “knew how it was going to come o ponderance of probabilities” even before the trial commeneed. Finally, as a measure of the importance of the theory of the case, many trial lawyers are ofthe view that with a good theory, a case may be considered as hal-won.5 IV. Two (2) Aspects of the Theory of the Case ‘The theory idency among lawyers to think that the theory of only to the legal approac ie has the privilege of initi scion. Hiehas thé option choose his course otaction, whethes To institute civ inal action or both, the Kinds amounts of damages, the parties to implead, the venue to avail of, provisional remedies to apply for, if any and the like. The foremost limitations to the theory of the case mn this regard are the facts of the case which cannot be rearranged or fabricated and the built-in limitations obtaining in the eourt or forum where the action is brought, b) The theory of the case for the defendant faceused or the theory of the defense ‘The defendant in a civil case or the accused in a criminal ease hhas also to formulate his own legal approach to the cause of action of the plaintiff or charge of the prosecution upon which his defense is interwoven. For example, in a civil ease involving claims for damages arising from breach of contract, the defen~ dant may raise a theory of defense that revolves around a defense that there was no breach at all or that there may have been a breach but this is excusable under the terms of the ano VOL, 201, SEPTEMBER 24, 1991 725 A Restatement Theory of the Case: during which the accused whi the violent confrontation. The u not participated in ly handicapped ed time given to him within which to make out his theory once the action is cor ed in court and by whatever theory or course of action that the plaintiff or the prosecution may choose. In other words, the defense counsel must formu- late his theory of defense within a given period and based only upon the kind of complaint or information filed against his client, $V. Benchmarks of a Winning Theory of the Case Writers of books on t tions as to what features possess. While they put it differently, the general ideas are about the same. Prof. Balbastro suggests that: “In the theory to be adopted, e: be tested against probability, naturalness and eredi- and the Practice of Law, p. 25; 1989 a sound theory must be 1 technique have wr and harmonious; ts formulation must be through of understanding and imagination (Trial Tech= Formula For Trial, p. 66; 1962 Bd). Judge Jarencio however, makes the that a lawyer cannot adopt any theory that. he fancies. This theory must. be supported by the facts of the case under consideration and the law that applied to these facts. his is the reason why the theory of the ease can. and should only be conceptualized and formulated after a thor- ‘Technique and Practi 98: ‘The above features are consolidated into six (6) benchmarks of pee theory: ‘he theory must havea firm foundation in strong, facts and726 SUPREME COURT REPORTS ANNOTATED __ Theory ofthe Case: “A Restatement mente, patently undoctored pictures, ‘testimony of independent witnesses, sense appeal; xxx; ‘Sixth, the theory eannot he based on swish phase ofthe ease." (George Vetter, Successful Ci Litigation ‘Win Your Case Before You Enter The Courtroom, p. 80; 1977 Kd, What can be inferred from the above discussion? There is a recurring theme that the theory of the case should show fidelity to the facts of the case. It must ‘mulated within parameter and limitations of the actual facts of the case. A on omitted, added or fabricated cause of the client. Atty. F. Lee ial lay or drama, but as to the latter, he added that the can make adjustments on the story to provide “good le room to change it. The facts are ‘and one takes what one: 1985 Ha) § VE. Thgpry of the Case and Amendment of Pleadings ‘The theory of the case may be usually determined from the pleadings of the parties. In civil eases, it is basically set forth in the complaint of the plaintiff and in the answer of the defen- dant. If this defendant files 2 third-party complaint in the same case, a theory of his claim against the third-party defondant is also set forth therein. Accordingly, the third-party defendant who is brought into the ease, may formulate his own theory or VOL. 201, SEPTEMBER 24, 1991 121 Theory of the Case: A Restatement is answer to the third-party compla suupple- and motions to dismiss may also indi , Rule 16 of the New Rules of Court may be defenses in the anawer. These affirmative de- fenses as well as any special defenses may provide the frame- work for the defendant's theory of defense. In criminal cases, the compiaint or information is the basie source of the theory of the ease for the proseeation. While the theory of defense may be gleaned in his Motion to Quash, ifhe any. It may be possible to discuss in said motioa a fraine- during the course of the trial. The determined from the objection or non-objection to the kinds of evidence being pres prosecution as well as in the dence, the testimonial and documentary evidence of accused will clearly delineate his theory of defense. a) In Civil Cases ‘What is the legal provision regarding amendments of plead- ings in civil eases which would affect the theory of the case? “Sec. 3. Amenciments by leave of court.—After the case is set for From the above provision as regards the theary of the case, it could be inferred that while substantial amendments may be allowed by the court, they may be refused if they substantially altered the cause of action or defense. In other words, what is proscribed is substantial amendment. which results in altering728 SUPREME COURT REPORTS ANNOTATED ‘Theory of the Case: A Restatement the theory of the ease be it for the plaintiff or for the defendant. For as indicated above, the cause of action in the complaint and the answer are the basic repositories of the theories of claim and defense, respectively. For example, 2 complaint initially filed in reivindieacion for recovery of land cannot be amended to change the cause of action to one for rescission of contract (orres vs. Tomacruz, 49 Phil. 918; 1927). As regards substantial amendment of the defense theory, a defense in a ing a management contract to be a eontraet of agency, ‘may not be changed on appeal by claiming the same contract as one for lease of services, applying the ruling in Nielsen & Co. e theory of the e However, in a fairly recent ease, this absolute when the substantial amendment resulting in altering the cause of action or defense will not result in substant provision of the New Rules of Court in ing amendments of complaint or informa- oct of altering the theory of the case? The inal procedure provide: “See. 14. Amendment—The information or complaint may be amended in substance or form without leave of court, at any time before the accused pleads; and thereafter and during the trial ato hout prejudice to the rightof the accused” ( it can be inferred from the above provision that substantial or formal amendment of the complaint or information may be made at any time before the accused hi i say from theft to estafa, or the theory of the prosecu! altered, so long as the accused has not entered a plea, it can be VOL. 201, SEPTEMBER 24, 1991 729 Theory of the Case: A Restatement ebe amended to murder before initial charge Dimalibor vs. Salcedo, 960). Even an Information for Serious Ph the accused made his pl Ramolete, 99 Phil. 145; 1956). done, but only as to matters of form and when tl done without prejudice to the rights of the ace substantial amendment or that which changes the nati “of the prosecution, the same cannot. be se in the answer was total denial of then during the trial or on appeal, it shifted to reverse gear by adopting a theory of defense which is in the nature of confession and avoi is certainly is a substan- changes the nature of the offense charged or the theory of the prosecution and for which the accused would accordingly undergo any material change or modification in his defense (Vega vs, Panis, L17 SCRA 269; 1982), § VIL. Rationale of the Rule Against Changing Theory of the Case ‘While judicial proceedings are generally adversari ture, they are always governed by the time-honored sporting gesture of fair play and due process. The law does not saiEME COURT REPORTS ANNOTATED Theory of the Case: A Restatement fhe oorioon oftes ew andortey tence against, alteration of the theory of claim or defence is anchored upon due process or the need to give the opposing party the opportunity et the claim or counterclaim of the parties. im or defense is pleaded courtand during the cou is abandoned, the or disadvantage. it be permitted to change the theor wr rehearing (Molina vs. S be to deprive the def 982). An Amended Inform: of the offense by 5 years as i alleged nst several accused was bbe informed before the trial of the specific charg and deprives them of (People vs. Opemia, et al., 98 Phi Reyes, 108 SCRA § VII A Brief Review of Some Important Supreme Court Cases on the Amendment of Pleadings and! or Theory of the Case a) us, Mun. of Placer of 1905 to Agoncillo & Marino It is noteworthy American Regime as sophisticated as today, the courts had already then saw the ‘importance of consistency in the pleadings an VOL, 201, SEPTEMBER 24, Theory ofthe Case: A Restatement 1 entry) of a pi | he amended his complaint which set out a cause of action of which the justice of peace had no juriediction, As- signed as error, the Supreme Court ruled that: “The pleadings in that action might be changed by the CFI, but they could not be so modified as to alter the natu n to determine the rights of pr ws, It found that: “All the parties, including the court id this action in that court as one of replevin only, Mf based this action absolutely on the question of ownership. 8 far as this reco not now convert this aetion the relative rights of ereditors "In Uy Aloe etal us Cho Jan Ling, et al., (19 Phil. 202 {1911)) involving several pl rt. was amendments to ffs. The High Court sustained the vurt in allowing the amendments which were “necessary for the proper development of the facts and in order to bring in all the parties interested”—provided these amend- ments had not prejudiced the defense set up by the a appelinnts. In Macleod & Co. vs. Marfori & Rasay (21 defendants assigned a: determined by the complaint filed as one for bi only. ‘The High‘no reason why at this time complaint should be permitted to prev: decision clearly defined the rule early or “When the parties to an action have tried the ease upon a certain theory and have exhausted their proofs upon the question involved at t on the theory of restitution—that the debtor (a third party) owed him some P81,000.00 was to be executed on his property, but defendants interfered with this execution through this injunction which was later lifted, resulting in the loss of the -e, what he failed to execute upon should be the basis for the award of damages. ‘The Supreme Court admon- ished “that the plaintiff cannot under these circumstances, be allowed at this time, to change the theory and nature of his hen in Agoncillo & Mario vs. Javier (38 Phil. 424 {1918) a ling case on the change of theories of the case, a more categorical injunetion by the Supreme Court on the need for consistency of a theory of the case was henceforth postulated ‘This was an action for collection of certain amount based upon a VOL. 201, SEPTEMBER 24, 1991 133 Theory of the Case: A Restatement memorandum of indebtedness. After the High Court reversed ing of the court a quo because the action had prescribed, ‘a Motion for Reconsideration arguing as if the yn was brought under certain provisions on hereditary suceession to obviate the infirmity of prescription. ‘The High Court came out with this oft-quoted rule: “When the plaintiff deliberately adopts a certain theory with respect o the basis of hit right of action, and the cage ia tried and tleided in the court below and in thin cour upon that theory, will nt be permitted to change the theory’ for rehearing (Molina vs. Somes, 24 Phil deprive the defendant the opportunity to defend.” b) The American Express Co. Inc. vs. Natividad of 1924 to Mentholatum Co. Inc. us. Magaliman, et al. of 1941. What follows is the case of The American Express Co. Inc. vs. Natividad (46 Phil. 207 [1924)), American Express sued tividad, the Collector of Customs of Cebu for releasing its cargo to comebody else. Natividad first filed a demurrer claiming that as private individual, he was not the proper party-defendant. American Express was not the real party in interest in this case. The High Tribunal rejected this contention: “The rule is that the objection, that the plaintiff is not the real party in interest must be set up in the answer to enable defendant to rely upon it, or it will be unavailing on the trial (1 Sutherland, Code Pleading, Practice and Form, Sec. 547). A party cannot be permitted to follow one theory at the trial, abandon it and then ‘announce a new theory in the appel Marino vs. Javier (1918] 38 Phil. 42: Nolasco Co. (47 Phil, 683 1925), the suit against the Board of Directors of a corporation was questioned on appeal arguing that the parties sued should have been the president and secretary thereof. This was rejected for it should have been raised in the lower court. It was too late to raise the question on appeal. In Torres vs. Tomacruz (49 PI ; 1927) the plain amended complaint was anchored upon an action in reivi first734 SUPREME COURT REPORTS ANNOT, Theory of the Case: A Restatement cion forthe recovery of and, After trial but prior tothe decision, veecioeing embed to file a second amended complaint ‘Supreme Court upheld the refusal of ica uurt, he merely asked for its rev ty. The High Court observed that: ons exist, courts are not inclined ime before them where was ruled that cause Of action at the introduce a cause of action “which had action was commenced.” The court has no: Barrios, et al. (68 Phil. 475; (1939 jailed rule was once more reaffirmed. In this clectiy jneolng the segregation of excess ballots wherein petitions Previously held a different position on the matter, the High — ei i { VOL. 201, SEPTEMBER 24, 1991 735 ‘Theory of the Case: A Restatement Gut declared that: “he is not pormitted to GhiR hom one theory atthe trial to now and different theory in the appellate court”, In Mentholatum Co. Ine. et 524; [1 Personally its products in the were actually im, ing to draw ate fairly the ature of the claims or defenses of both partion, vg cu party Sistong subsequently take a position contradictory to or inert. trae ny ath his pleadings, a the facts therein aretobetakes cy true for the purpose of the action”. ©) People vs. Zulueta of 1951 to Shaffer vs. Palma of 1968 ta fecple ws, Zulueta (89 Phil. 752 (1951) “an amended jyckmation setting forth a different manner of cons iting the felony” does not i Srthe, t i8 NOt generally permissible to alter plaintitts theory ofthe case, alteratio, "ubstantial”. And in eriminal cases, ingave the reason for disallowing substantial amendmeatattee, information.-that the accused should be always infornent ofthe fhanges against him—to avoid any passible surpeings that may lead to injustice”. In Atkins Kroll & Co, vs. Cue Hian Teck, (102 Phil. 948 [1958)) the Supreme Court merely reaffirmed the Mershota case736 REME COURT REPORTS ANNOTATED “Theory of the Case: A Restatement the High Court held that—a defense not raised in the lower court cannot be allowed on appeal. The High Tribunal quoted Chief Justice Moran in his famous commentaries on the Rules of Court: Agustin vs, Barrios, 68 Phil. 475, 480; Toribio vs. Decasa, 65 Phil. 46Ly another case involving interpretation of management con- the High Court after repeating the a i permit on the part of defen- dant which is a ground for the removal of his house. ‘The High Court observed that “this theory was not raised or adopted by the plaintiff in its complaint or at any time during the trial in the court below, it cannot be adopted for the first time on appeal” In Uy vs. Uy (2 SCRA 675; (1961) an amendment of a complaint was not stigmatized as abuse of discretion since it merely supplemented the allegation in the cause of action which was, i owing to the plaintiff under a valid obligation—were not changed. or altered”. Similarly, in Hautea vs. Magalion, (12 SCRA 514; [1964] an ejectment case, appellant questioned in the lower court the complaint for alleged failure to state the date of the violation of the lease contract, so as to show that the action was brought answer that would withdraw previous admissions and change the theory of the case, adopted in the answer originally filed, cannot constitute a grave abuse of discretion”. In Shaffer us. Palma 968}) an amended complaint was refused ac lower court because the amendments therei original cause of action or Court in rejecting permissible amend: B lly the same wrong with if what are alleged refer to the same matt differently stated, or where avermen expressed terms and the subject of sought to be enforeed remains the sam 4) Nielsen & Co. Inc. us. Lepanto Consolidated Mining Co. of 1968 to Sedeco us. CA of 1980. In Nielsen & Co. Inc. us. Lepanto Consolidated Mining Co, (26 ‘SCRA 540; [1968), Lepanto filed a Motion for Reconsideration before the Supreme Court claiming that the contract of man- ject of the dispute was a contract of agency, a its position tending towards a position that the contract was for lease of services. ‘This position was never set forth in Lepanto’s answer. Reiterating the settled jurispru- dence, the Supreme Court declared: “It (Lepanto) could have asserted its theory of agency in its memorandum for the lower738 SUPREME COURT REPORTS ANNOTATED court and in its brief on appeal. This, Lapanto did not do, Ibis, the rule and the settled doctrine of thie court, that a party cannot change his theory on appeal—that is, that a party can- the issues made by the In Rubio ns. Mariano (49 SCRA 319; [1973) the High Court faulted the lower court for requiring to admit the amended and supplemental answer by applying the rule regarding amend- rents. The above ruling in Shaffer and Rubio eases sense applied in Keramik Indus ; [1974 wherein the Supre ‘amended complaint eontai ance of the mortgaged proper be allowed because naming another party as also (plaintiffs) claim amounted to alleging a “new ‘Timber Co. Inc. (16 SCRA 1 that a party cannot change unfair to his opponent. This would deprive the opposing party of unter with its own evidence the Court gave an exception: “in th> .nge his legal theory on appeal only when the factual bases thereof would not require presentation of any further evidence by the adverse party in order to enable accurate statement, amplification or clarification of the allega- “Theory of the Case: A Re \ Restatement ho original Answer and expresses what i payment of repair costs of damaged car of plaintiff, a in any manner change the theory of the defense”, It added that amendment should be allowed “in order that the real controver- sies between the the elaim of ownership. The amended complaint delel- ing the issue of ownershi is possession did not substar paint”. InDosch vs. “resignation” to “insubordination” on appeal missal of the employee. This stance was rejec! preme Court: “This change of theory on appeal is improper and it is offensive to the basic right of fair play and justice and violative of petitioner's constitutional right to due process of low”. The Marini-Gonzales vs. Lood (148 SCRA 459; [1987) case provided an exception in that amendments of pleadings may be allowed “even if the same will substantially change the cause of action or defense provided that such amendments do not result ina substantial injury to the adverse party” or “when no wrong is done” to the adverse party. This is for the court to determine esting the amendments against the basic rights of the adverse party. In Guzman-Castillo vs. Court of Appeals, (159 SCRA. 220; (1988) a complaint for “nullification” of certain documents cannot be amended to be one for “reformation” of these documents—since they are inconsistent. with each other. Nulli- fication of the contract. deprives it of life and efficacy, whereas reformation gives it life after certain corrections are made.tase: A Restatement In People vs. Montenegro, (159 SCRA 236; [1988)) the High it affirmed the lower court order refusing the Amended to Robbery in Place, alleging conspiracy and listing di jlen by the accused. Amendment, of informa- tion may be allowed if it will not prejudice the rights of the accused. There is prejudice if accused had to put up a new defense and a new set of evidence would also be needed. ‘This 1e lower court to admit nswer after pre-t it alleged peaceful land adverse possession of the land, thereby admitting the existence of this land in question, whereas the existence of this, land was earlier doubted in the original answer. Then, too, the revamp the theory of the Leobrera vs. Court of Appeals (170 SCRA 711; t alleging a different original complaint related to the claim or defense presented therein and founded on the same cause of action. It cannot be used to try a new matter or a new cause of action”. § IX. Significance of the People vs. Rio Ruling on the ‘Theory of the Case ‘As stated at the outset, in People us. Rio, the ease under annotation, the counsel de oficio for the purpose of appeal, suddenly shifted the theory of the defense from alibi to parti pation or consent on the part of the offended party~clearly inconsistent positions. Usually a shift in defense theory in eivit ‘cases is proscribed because of the possible unfairness or preju- dice upon the adverse party. Butin criminal cases, the “adverse party” or the “People” is not usually placed at a disadvantage as ‘when such shift, boomerangs upon the eause of the accused. The High Court in People us. Rio pointed out the adverse effect of this act of counsel that: “such a shift can never speak well of the credibility of the defense” and accordingly, it would be “detri- VOL, 201, SEPTEMBER 24, 1991 741 Theory of the Case: A Restatement Henes, what makes this case quite si criminal cases, a shift in the theory of the prosecution is not allowed for the protection of the interest of the accused. In this, cease, a shift in the theory of the defense is also disallowed for the protection of the interest of the accused. ‘Then too, this case has also brought forth the need to give profound thought and consideration on the theory of the case as it determines i very large measure the success and failure of a party ‘The People vs. Rio cas gave the High Tribunal a most fitting opportunity to members of the bar of their bounden task to their clients. The eloquence and foree of the “The Court hereby admonishes members of the Bar to be more conscious of their duties as advocates oftheir cients’ causes, whether acting de parte or de ofteio, for p srest requires that an attor- ney exerts his best efforts and ability in the prosecution or defense of his client's cause. Lawyers are an indispensable part of the whole system of administration of justice in this jurisdiction. And a lawyer ‘who performs that duty with diligence and candor not enly protects the interests of his client serves the ends of justice, does ‘honor to the Bar and helps maintain the respect of the community to the profession.” §X. Conclusion ‘we will ask “How important renlly is the theory of the ining litigations?” To many trial lawyers likt> Atty. Melvin M. Belli, convening a “council of war”, ifin partnership, to formulate the best theory for their side in a forthcoming case before the first pleading is filed, is the most crucial part of a litigation. Ifhe is a a thorough immersion in the facts and the applicable law him arrive at the most framework that would give meaning, significance and documentary evidence, a trial lawyer will not meander away from his objectives during the trial and even on appeal.742. SUPREME COURT REPORTS ANNOTATED ‘Theory of the Case:A Restatement ‘At present, the country is witnessing the highly publicized civi riminal cases filed against the rel the past leader mainly for all "The proper formulation of theories for reco to a large degree the eventual success or fa these eases. On the other hand, equally good formulation of the theories of the defense on the part of the defendants or accused may also frustrate recovery and/or absolve the accused from the i battles for recovery of To use the quaint language of Louis Nii lawyer noted for his courtroom explei books,—in thes If only to underscore its importance, a trial lawyer cannot afford the luxury of a mistake in the formulation of his theory of the ease because once the issues are joined or progresses and much more on appeal, he cannot anymore aban- don or substantially amend his theory to meet. an adverse development in the case, Our survey of those pertinent cases decided by the Supreme Court from the turn of the century to the present has yielded this dominant message, the nes consistency in adopting the theory of the case from the lower ‘court to the appellate courts. During his lecture at the UP Law Center, Justice Ramon Fernandez, an outstanding legal practi- tioner, gave this advise to his lawyer-audience: “ARer knowing the facts and Ue la the theory of the ease. Remember this elemer ‘on changing theory. One you adopt a the You cannot change theory later on speci adopt the correct theory.” ‘medial Law Revisited, p. Center) ble, you de ey rule: You cal , you are stuck VOL. 201, SEPTEMBER 24, 1991 143 Theory of the Case:A Restatement stratogy-only due regard for its value, function and offective- ness can insure victory in a case. 000