Creating a Winning Case Strategy
It’s about focus and emphasis
Complex litigation invariably involves opportunities for confusing jurors and judges. A skilled adversary will attempt to distract the triers of fact with matters that are not necessarily central to the critical facts, but which can undermine the credibility of your case in chief. The landmines in both your case and in theirs need to be anticipated and understood. They need to be strategically rebutted and reframed if their impact is going to be minimized.
We win when we disprove the defenses.
Cases are always full of landmines. A landmine is any fact or conclusion that, if believed to be true, results in either a loss of the case, or a reduction in the recovery. It can include facts not in evidence, biases, prejudices, politics, and anything else that might conceivably weigh on the minds of the judge or jury.
We create their best plan, then we do our best to destroy it.
The first phase of the process is an emersion into the reasoning of the opposition. Instead of a sea of potential problems, the land mines are clustered into related groups, and prioritized as to their persuasive impact. Ultimately, the work product from this phase is a complete roadmap of the theories, conclusions, and evidence (including possible rabbit trails and side issues) likely to be employed to beat you. You will know the opposition case at least as well as your opponents.
The second phase of strategic case planning is to construct rebuttal strategies for each of the landmines. Sometimes it will involve introducing facts that are omitted by the opposition, other times it requires reframing issues and/or embracing negative facts that are part of the case.
We use the defendant to destroy as much of the opposition case as we can.
Strategic Case Planning highlights options, and develops language that will be used to rebut landmines as they are introduced by opponents, or before. The language and content of the discovery plan is carefully chosen, and each deposition becomes a focused tool to reach an end result that has been carefully planned.
Creative Analysis and Strategic Planning
Described in other words, what we do in our worksessions is careful, methodical case analysis and strategic planning. As part of that process we continually search for Persuasive Frames and Priming that is specific for the case. Themes and Anchors become part of the creative process, and creativity ends up being an important part of this process. When Phillip looks at your case, you are guaranteed that the case will be examined through a different lens and that the collaboration with him will result in a work product that neither of you could have done without the other.
No attorney, and no case, goes through this process without being seen as fundamentally different. Holes in the required proof become evident immediately. Issues of liability, causation, and damages are always more vivid and real, but just as important the flaws and weaknesses of the opposition case are likewise exposed.
Many times, one of the goals of a work session is the development of a deposition strategy for key witnesses and corporate representatives. Phillip has done this with dozens of law firms with great success and brings both a creative and experienced perspective into the process.
Juror Opinion research
Focus groups are often a part of what Phillip is asked to do, and he has extensive, national experience in the design, structure, moderation, and analysis of focus group discussions. Phillip is a nationally recognized as an expert in this area and the author of the book Focus Groups, Hitting the Bulleye, published by AAJ Press.
Deep Metaphor interviews
Focus groups are one way to assess how a jury may look at the evidence in a case, but not the only way. Phillip is one of 2 attorneys nationwide who is trained and licensed to do deep metaphor interviews for juror opinion research using the patented ZMET process.
The deep metaphor interview is often seen as a more direct and effective way of finding out how jurors will think about the issues in a case and what metaphors may drive their decision-making.