On Wednesday September 2nd, Phillip Miller and I will be doing a teleseminar for Trialsmith on using strategic case planning to maximize recovery in your cases. You can sign up at https://www.trialsmith.com/TS/index.cfm?showfullpage=1&event=showAppPage&pg=semwebCatalog&panel=showLive&seminarid=1682.
Why does strategic case planning work?
When we work with a trial team to prepare a strategic case plan, one of the primary reasons for success is the amount of focus that is brought to bear on the case. Our uninterrupted work sessions can last 2 days without interruptions of any kind. They are done away from your office. There are no appointments, depositions, phone conferences, or other distractions during our work sessions. We spend every minute of each day focusing on the one case that you have selected. At the end of a work session, we guarantee it will be the most intensive case preparation you have ever experienced, short of final trial prep.
Strategic Case Planning allows you to shape a trial story and case presentation that incorporates what we know about juror learning, juror bias, memory, and decision-making. It identifies the case critical points for your case, and the opposition case, and it serves as a guide to development of relevant visuals that are tightly integrated with both your case, and the case you are rebutting.
Strategic case planning is valuable at any point in litigation, but the sooner the case planning is conducted, the greater its potential benefit. Strategic case planning is most powerful as a tool if it is used before discovery, or at least before case critical depositions are taken. When done before discovery begins gives, you will expose how every aspect of the opposition’s case, along with juror biases and other negative non-evidentiary inferences, will be perceived by the fact-finders and shape deliberations. More importantly you will begin discovery with a detailed plan that allows you to rebut all the landmines that favor the opposition, and a plan of what you need to elicit from opposition witnesses that will give you evidence that you need to prevail. From that earliest point, to preparation of your own client, preparations of your experts, depositions of defendants and their experts, jury selection and case presentation, strategic case planning helps to shape and guide trial strategy and presentation.
By focused discovery that rebuts the landmines in a case, you can change the nature of the case and the opposition’s perception of their risks. This can provide a tactical advantage that can be decisively exploited during settlement. Numerous clients who have completed early case planning report that they are able to use what they learned in case planning to better hit their opponent’s weak points during discovery and maximize their client’s recovery in mediation.
Here are some of the specific benefits that early strategic case planning can provide for you and your clients.
1. Identify problems in the case early, so you will have time to fix them
Looking at a case through the lens of a plaintiff gives a different view than what the jury will hear and see, and things get missed. There are “blind spots” in our ability to anticipate what the opposition is doing/will do, and what the jury will think is true. Inevitably when “Blind spots” are discovered they involve evidence that is serious enough to affect case value and outcome. Late discovery of these problems provides no time to develop effective rebuttal proof. Instead, the attorney is limited to what he/she can argue and hope that the jury puts more weight on the argument than they do the evidence. One of the main benefits of doing strategic case planning early is that, by finding such blind spots, you have time to rebut the landmine created by the blind spot, and potentially expose blind spots of the opposition as we. Every time we do strategic case planning we are able to expose landmines and blind spots that were completely unanticipated and would be outcome determinative if un-rebutted.
2. Anticipates the questions jurors will ask during deliberations.
Any statement by an attorney that is not clearly supported by facts has little chance of survival during deliberations. Questions like: How do you know that? Why is that true? Why is that important? What does that have to do with this case? are integrated into the process of strategic case planning so that your evidence answers the questions the jurors want to ask, which is much different than shaping evidence to prove a prima facie case. Successfully anticipating and answering juror questions is the path to victory.
3. Creates discovery that is focused, efficient, and effective.
If strategic case planning is begun before discovery, you will gain insights about areas of inquiry that you never would have anticipated. The strategic case plan will clearly point to which witnesses your will need to depose. Those witnesses are often different that what you might have thought of if you had “made a list” because they are necessary to respond to case landmines and rebuttals that would not have been otherwise obvious. The plan will also show what experts you will or will not need, and provide guidance on how to potentially eliminate 1 or more experts through your rebuttal.
4. Prepares you for efficient, reliable focus group research.
Strategic case planning produces a detailed presentation plan for anyone who will be representing the opposition in focus group testing and mock trials. Too often focus groups hear a weaker, less persuasive presentation than they will from the opposition lawyers at trial, lessening the reliability of the information you receive. Focus group research that does not present the opposition case gives you little of value. Just as importantly, strategic case planning provides specific rebuttals to the opposition case that are honed, refined and reduced to writing. When the focus group exercise is conducted, the strength of those specific rebuttals can be measured-not just generalities.
5. Provides guidance on the graphics to be used
Strategic case planning forces the early identification of key points that constitute the rebuttal to landmines, and the case-in-chief. These key points, and the facts that support them, form the plan for the visual strategy in the case. Early in the case is it possible to see what the visual strategy willl look like, incorporate elements into the discovery, andx test early drafts of the visuals with focus groups.
Please join us on this teleseminar, it will benefit both you and your clients.