Litigation strategy
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Litigation strategy is the process by which counsel for one party to a lawsuit intends to integrate their actions with anticipated events and reactions to achieve the overarching goal of the litigation. The strategic goal may be the
verdict In law, a verdict is the formal trier of fact, finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In Engl ...
, or the
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
or sentence awarded in the case. Alternatively, in the case of impact litigation (also known as strategic litigation) the goal may be more far-reaching, such as setting
legal precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, affecting consumer-safety standards, or reshaping the public's perception of a societal issue. Broader goals and more challenging cases require a strategist with a greater understanding of, and facility with, the tools of litigation strategy. Attorneys who apply advanced strategic concepts (such as
Maneuver Maneuver (American English), manoeuvre (British English), manoeuver, manœuver (also spelled, directly from the French, as manœuvre) denotes one's tactical move, or series of moves, that improves or maintains one's strategic situation in a compet ...
and the Boyd Loop), which are not taught in most
law school A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisdiction. Law degrees Argentina In Argentina, ...
s, may gain a decisive advantage over attorneys who are unfamiliar with the skill set and who, because of their unfamiliarity, can be unwittingly maneuvered into disadvantageous actions. The resulting imbalance has led to academic criticism of the use of advanced strategic techniques. For instance, Hugh Selby of
Australian National University The Australian National University (ANU) is a public research university located in Canberra, the capital of Australia. Its main campus in Acton encompasses seven teaching and research colleges, in addition to several national academies and ...
's College of Law has been particularly critical of its use by prosecutors, who already wield the massive power of the state against often poorly resourced defendants. The counterargument is that strategy can correct already-existing imbalances in the system, allowing a sole or two-attorney law firm with an indigent client to level the playing field against a large law firm with a wealthy corporate client, and allowing attorneys with little trial experience to effectively try cases against vastly more experienced opposing counsel.


Description

Strategy is the process of designing and achieving a desired final outcome. Basic litigation strategies organize a case so that it has a cohesive focus. Advanced strategies will anticipate and even shape events, decisively guiding the situation to the desired outcome. Litigation strategies are either primarily direct or primarily indirect, though they usually include elements of both. In litigation, direct strategies argue: 1) what the law does or does not say; 2) what the facts are or are not; or, 3) who has the more believable witnesses. Indirect strategies, on the other hand, shift the point of conflict, alter perceptions of what is central, or undermine the opposing counsels’ case without direct confrontation, often through deception, surprise or misdirection of the opponent—though never of the jury.
Trial advocacy Trial advocacy is the branch of knowledge concerned with making attorneys and other advocates more effective in trial proceedings. Trial advocacy is an essential trade skill for litigators and is taught in law schools and in continuing legal e ...
offers a number of tools and methods for constructing sound strategies. On a practical level, litigation strategy commonly includes an assessment of resources of all parties to the dispute, which can inform attritional considerations and likely attitude to risk, tactical court applications such as injunction applications or other tactical procedures aimed at gaining an advantage over the opponent or even a decisive blow and end to the dispute. Timing is also generally an essential part of any litigation strategy.


Tools of litigation strategy


Case diagrams

With this organizational tool, attorneys list the elements of the case they are required to prove (or intend to disprove) then list all the evidence they intend to leverage in support of each element. The purpose is to ensure they address all the issues of the case and to make certain that meeting one element does not require undercutting the evidence in support of another.


Theme and theory

These messaging tools bring force and greater direction to the evidence. The theme is a sound bite that encapsulates logic or emotional force of the attorney's case. The theory of the case is a logical description of events that the attorney wants the judge or jury to adopt as their own perception of the underlying situation. The theory is often expressed in a story that should be compellingly probable. Theme and theory become strategic tools when they serve as the core for the organization of the case. These tools are effective when every aspect of the trial, including the actions and reactions of the adversary, are organized and incorporated in support of them. In practice, a lawyer writes the closing argument first and then works backward to plan the argument.


Maneuver strategy

Maneuver is a strategic philosophy that leverages the indirect approach through its focus on individual decision making and perception. It is ideally suited to litigation, wherein the jury's perception decides the outcome. The core of maneuver is the decision cycle as described in
Boyd Boyd may refer to: Places Canada * Boyd Conservation Area, a conservation area located northwest of Toronto, Ontario * Boyd Lake (disambiguation) United States * Boyd County (disambiguation) * Boyd, Indiana * Boyd, Iowa * Boyd, Kansas * B ...
’s
OODA Loop The OODA loop is the cycle ''observe–orient–decide–act'', developed by military strategist and United States Air Force Colonel John Boyd. Boyd applied the concept to the combat operations process, often at the operational level during mi ...
. This
model A model is an informative representation of an object, person or system. The term originally denoted the plans of a building in late 16th-century English, and derived via French and Italian ultimately from Latin ''modulus'', a measure. Models c ...
notes that in decision-making, individuals (witness, opposing counsel, jurors) go through a process of observation (receiving information), orientation (deciding what the information means to them and what they might do about it), decision (picking a course of action from among the possibilities), and then acting (taking the course of action). Like most models, the OODA Loop is not a technical description, but it is rather a tool for illustrating important points for strategists. While litigation presents opportunities for information denial through the rules of privilege and work product, even more opportunities to shape the conduct of opposing counsel and hostile witnesses arise in the orientation phase. Psychology offers deep insights into how individuals perceive and misperceive information. Moreover, an individual’s perception of a situation affects how he frames his decisions. By altering perceptions, litigators can shape the decision the party will make. Coupling this understanding of psychology with utility theory / economic
game theory Game theory is the study of mathematical models of strategic interactions among rational agents. Myerson, Roger B. (1991). ''Game Theory: Analysis of Conflict,'' Harvard University Press, p.&nbs1 Chapter-preview links, ppvii–xi It has appli ...
, attorneys can set the stage for adversarial parties to take actions that serve the attorneys’ plan. At the same time, the attorneys must protect their own decision-making while retaining a degree of control over the evolving situation. The methods for protecting one's own decision-making include making accurate predictions (using tools from
psychology Psychology is the scientific study of mind and behavior. Psychology includes the study of conscious and unconscious phenomena, including feelings and thoughts. It is an academic discipline of immense scope, crossing the boundaries betwe ...
and
utility theory As a topic of economics, utility is used to model worth or value. Its usage has evolved significantly over time. The term was introduced initially as a measure of pleasure or happiness as part of the theory of utilitarianism by moral philosopher ...
), validating planned actions, having a clear focus of effort and information flow, and building sound, powerful, and flexible plans, as can be done using a “line of effort.”


Lines of effort

A line of effort can organize the attorneys' planned actions in the way a case diagram organizes their evidence. Because of the uncertainty inherent in trial practice, the litigators’ strategic plan must be powerful, yet flexible, to remain effective. The line of effort produces the needed power and flexibility by structuring the plan around the ''purpose'' and an achievable ''end state'' that realizes the purpose, the ''aims'' (the elements necessary, or chosen to achieve the end state), and the ''levers'' or ''effects'' (the actions the counsel can take that are likely to bring about the targeted aims). The visual nature a line of effort allows the attorneys using it to see the entirety of the trial, ensuring their plan comprehensively addresses the situation, and identifying points of high uncertainty where having prepared branch plans would be prudent. It further allows the attorney to exploit unexpected opportunities with an understanding of what elements of his/her plan will be enhanced and which will require further adaptation, making the opportunistic action not only clear-sighted, but focused and efficient. In a fluid situation, any levers or aims rendered obsolete by changes in the situation are swapped out, retaining the bulk of the previously analyzed and validated plan intact, and providing a clear focus for the branch plan or substituted actions.''Id.'' at p. 55–70


References


Bibliography

* Dreier, A.S. ''Strategy, Planning & Litigating to Win''. Boston MA: Conatus, 2012. * Lubet, Steven ''Modern Trial Advocacy''. South Bend, IN. NITA, 2004. * Mauet, Thomas A., ''Trial Notebook''. New York, NY: Aspen, 1998. {{Law , state=expanded Legal concepts Strategy