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, or the damages 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, affecting consumer-safety standards, or reshaping the public's perception of a societal issue. [1] 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 and the Boyd Loop), which are not taught in most law schools, 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'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. [2] 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. [3]
Strategy is the process of designing and achieving a desired final outcome. [4] 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. [5] 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. [6]
Trial advocacy 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.
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. [7]
These messaging tools bring force and greater direction to the evidence. [8] 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. [9]
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 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’s OODA Loop.
This model 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). [10] 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. [11] 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. [12] Coupling this understanding of psychology with utility theory / economic game theory, attorneys can set the stage for adversarial parties to take actions that serve the attorneys’ plan. [13] At the same time, the attorneys must protect their own decision-making while retaining a degree of control over the evolving situation. [14] The methods for protecting one's own decision-making include making accurate predictions (using tools from psychology and utility theory), 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.” [15]
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). [16]
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. [17]
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and giving expert legal opinions.
A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class action originated in the United States and is still predominantly a US phenomenon, but Canada, as well as several European countries with civil law, have made changes in recent years to allow consumer organizations to bring claims on behalf of consumers.
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect. Redirect examination, performed by the attorney or pro se individual who performed the direct examination, clarifies the witness' testimony provided during cross-examination including any subject matter raised during cross-examination but not discussed during direct examination. Recross examination addresses the witness' testimony discussed in redirect by the opponent. Depending on the judge's discretion, opponents are allowed multiple opportunities to redirect and recross examine witnesses.
The direct examination or examination-in-chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the lawyer/side/party that called such witness in a trial. Direct examination is usually performed to elicit evidence in support of facts which will satisfy a required element of a party's claim or defense.
A hostile witness, also known as an adverse witness or an unfavorable witness, is a witness at trial whose testimony on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness. This concept is used in the legal proceedings in the United States, and analogues of it exist in other legal systems in Western countries.
Strategy is a general plan to achieve one or more long-term or overall goals under conditions of uncertainty. In the sense of the "art of the general", which included several subsets of skills including military tactics, siegecraft, logistics etc., the term came into use in the 6th century C.E. in Eastern Roman terminology, and was translated into Western vernacular languages only in the 18th century. From then until the 20th century, the word "strategy" came to denote "a comprehensive way to try to pursue political ends, including the threat or actual use of force, in a dialectic of wills" in a military conflict, in which both adversaries interact.
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil action brought by a plaintiff requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
John Richard Boyd was a United States Air Force fighter pilot and Pentagon consultant during the second half of the 20th century. His theories have been highly influential in military, sports, business, and litigation strategies and planning.
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 military campaigns. It is now also often applied to understand commercial operations and learning processes. The approach explains how agility can overcome raw power in dealing with human opponents. It is especially applicable to cyber security and cyberwarfare.
Res judicata (RJ) or res iudicata, also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgment and that is no longer subject to appeal; and the legal doctrine meant to bar relitigation of a claim between the same parties.
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has seven months to veto the rules promulgated or they become part of the FRCP. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.
A closing argument, summation, or summing up is the concluding statement of each party's counsel reiterating the important arguments for the trier of fact, often the jury, in a court case. A closing argument occurs after the presentation of evidence. A closing argument may not contain any new information and may only use evidence introduced at trial. It is not customary to raise objections during closing arguments, except for egregious behavior. However, such objections, when made, can prove critical later in order to preserve appellate issues.
Robert ("Bob") Fellmeth, is a tenured Professor of Law at the University of San Diego School of Law, holder of the Price Chair in Public Interest Law, and executive director of the Center for Public Interest Law and the Children's Advocacy Institute.
An opening statement is generally the first occasion that the trier of fact has to hear from a lawyer in a trial, aside possibly from questioning during voir dire. The opening statement is generally constructed to serve as a "road map" for the fact-finder. This is especially essential, in many jury trials, since jurors know nothing at all about the case before the trial,. Though such statements may be dramatic and vivid, they must be limited to the evidence reasonably expected to be presented during the trial. Attorneys generally conclude opening statements with a reminder that at the conclusion of evidence, the attorney will return to ask the fact-finder to find in his or her client's favor.
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 education programs. It may also be taught in primary, secondary, and undergraduate schools, usually as a mock trial elective.
Richard C. Waites, J.D., Ph.D.,, a noted board certified trial attorney and social psychologist, is an internationally recognized expert in jury and courtroom decision maker research, a field he helped to develop and that he continues to advance.
Eric Gibbs is an American attorney at Gibbs Law Group LLP in the United States. He is a member of the Board of Governors of the Consumer Attorneys of California. As a part of the American Association for Justice, he co-chairs the Consumer Privacy and Data Breach Litigation Group and the Lumber Liquidators Litigation Group, and serves as the secretary for the Qui Tam Litigation Group.
Ervin A. Gonzalez was an American civil trial attorney whose practice focused on wrongful death, personal injury, medical negligence, product liability and class action torts. He was a partner with the law firm Colson Hicks Eidson in the firm's Coral Gables office.
Strategic litigation, also known as impact litigation, is the practice of bringing lawsuits intended to effect societal change. Impact litigation cases may be class action lawsuits or individual claims with broader significance, and may rely on statutory law arguments or on constitutional claims. Such litigation has been widely and successfully used to influence public policy, especially by left-leaning groups, and often attracts significant media attention. One prominent instance of this practice is Brown v. Board of Education.