From the Multnomah Lawyer: Tips from the Bench – In Order to Win, Find Out What’s Wrong with Your Case
One of the true pleasures and privileges of being a judge, especially one curious about people and litigation strategy, is the ability to get inside someone’s case during a settlement conference and poke and prod it before it settles or heads to trial. In my experience, there are two distinct approaches lawyers take in a settlement conference: the first is taken by the “reasonable” lawyers who admit weaknesses in a case, while the second is taken by lawyers who stridently oppose any small criticism of their client, their client’s evidence, or the merest suggestion that trial could result in an unfavorable outcome.
I’m not here to tell you which approach is likely to be more effective; frustratingly, I truly think the answer depends on the facts and client dynamics of a particular case, including the personality of the judge or mediator. My purpose in writing this article is to provide some tips on how to evaluate your case so that, in the event you attempt to “bluff” the judge or mediator about the strength of your case, you have a pretty good idea of what might actually be wrong with your case well before the jury returns a verdict.
Sometimes I worry that overconfident lawyers aren’t bluffing, they just haven’t considered that reasonable people might view the same facts differently. So, how do you figure that out so you can be well prepared for any settlement conference or trial, while giving your client sound legal advice every step of the way?
First, start a list of “good” facts and “bad” facts for your case. I put those words in quotes because of course your job as a trial lawyer is to convince your opposing counsel and your mediator that the bad facts are, at worst, just neutral and not the devastating facts your opponent claims them to be. The relative length of each list will not tell you whether or not you will win (because, for example, your star witness having an impeachable perjury conviction could make the long length of the “good” list very short in practice). It will, however, usually give you some idea about how good your case is.
Maintaining these lists will also prompt you as to what additional follow-up work you need to do to prove or disprove the key facts at trial. The lists will also come in handy in realistically advising your client about settlement or chances for success at trial, drafting mediation statements, and in ultimately picking exhibits and witnesses for trial.
Next, you need to talk to people about your case. A lot. Talk to people who are like you and do the kind of work you do, but also people who are different than you and who do different types of work. The best trial lawyers I know, the dog-with-a-bone trial lawyers, will not shut up about their cases and are always asking if they can “just run a few facts” by you on the phone or over coffee. These lawyers are trying to troubleshoot their cases by getting opinions from as many people as possible, and they are smart to do it. Buying your friends coffee so you can talk about your case is a lot cheaper and faster than paying for a formal trial focus group, something many clients can’t afford. Obviously, you need to make sure you are not revealing client confidences, and only talking to people you trust. Talk to lawyers, and talk to non-lawyers too, because of course that’s what you’ll be doing in an actual trial.
Talking to smart, opinionated people who don’t have an interest in your case is the best way to combat a dangerous phenomenon that goes by many names: confirmation bias, tunnel vision, an echo chamber, having your head buried in the sand, etc. If you personally are a different race, age, gender or otherwise share little in common with the star witness for the opposition, talk to some folks who might have more in common with that witness than you to make sure that your view of the facts (including your case theme and intended cross-examination strategy) isn’t likely to backfire or cause offense. Ideally, lawyers who work together should be a diverse enough group that this feedback is available internally, but unfortunately that is not always the case.
To make workshopping your case most effective, tell the story of your case first from your opponent’s point of view...then from your client’s point of view. Ideally, you should do a mini-opening with other side’s best version of events. That way, your audience will have your bad facts first. If you aren’t giving your “best” case first, you will likely get more useful feedback about the strengths and weaknesses of your case. If you’re the defense, you know that’s how it goes down every time at trial anyway.
Giving your case some air will provide you with useful feedback, allow you to do a better job countering your opponent’s approach, and will also make you more fluent with the evidence in your own case. Knowing your evidence, and its weaknesses, is your best asset in a settlement conference and at trial. And that’s whether or not you decide to acknowledge your case’s problematic aspects or confidently try to bluff your way past them.
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