By Dr. Ken Broda Bahm:
Imagine you’re a hound in a field of rabbits. As you’re giving chase to one, you get the scent of another and off you go after that one. In the distraction of a new target, you end up with no rabbits. Now imagine that you are Rick Santorum questing for the Republican nomination. In a down economy, you know that the top three issues are jobs, jobs, and jobs. Then, you get the scent of an issue you can’t resist: Contraception and religious liberty! It radically energizes your base, but only at the cost of turning off the more moderate voters. You’re able to damage the front runner, but not enough to have a good shot at the nomination after Super Tuesday. No rabbits.
Both Rick and the hound have one thing in common with litigators: a practical need to carefully and decisively pick their targets. Often, that means realizing that discretion is the better part of valor. Even when we think we see the ideal issue, we notice a great argument, or believe we have the unanswerable response, it will make more sense to keep our powder dry and maintain a focus on what matters most. Particularly in complex litigation where attorneys have spent years in discovery leading up to trial, the temptation to chase every rabbit by pursuing each line of argument we see can be a strong one. But intelligent and persuasive messaging creates a need to temper that temptation and pick our battles. In this post, I take a look at the art of issue selection and its role in setting an agenda in your trial.
Paring Down the Issues
There is one context where the idea of issue selection has been raised to an art form. In academic debate, a common training ground for many a future lawyer in high school and college, advocates will start out with a very large number of issues (that is why they talk as fast as auctioneers on too much coffee), and then through a process of chess-like strategic moves and sacrifices, they winnow that number down until by the final speeches, the debate is usually focusing on just one issue. We know that this process can’t exactly be replicated in a trial because neither jury nor judge would have the patience for it. But the necessity to pare down the issues is the same for litigators, it just needs to happen before the trial instead of during.
The elements of choice and focus are common in all argument contexts. In litigation, however, it can be more difficult to put into practice. When I’m first learning a case, I’m often in the position of asking counsel, “what is important here,” and the reply is often, “it is all important.” True enough, but at a practical level, something needs to stand out and be central to the judge, arbitrator, or jury. Emphasizing everything means emphasizing nothing.
Creating the Agenda Through Emphasis
What we talk about in trial plays an agenda-setting role. The phrase “agenda-setting” is normally applied to the mass media, and the notion that even where powerful communicators fail to tell an audience what to think, they generally succeed in telling that audience what to think about. The same applies to how you spend your time in legal argument: Your focus is their focus. If you spend most of your time on the central problem of your case, then your decision makers will spend most of their time thinking about that problem.
For plaintiffs, filing a complaint often means including everything you can think of plus the kitchen sink. But by the time of trial or even mediation, smart advocates have used discovery to limit that list to just the best and most likely to prevail in court. Defendants have a bit less liberty to choose their arguments because they often have no choice but to answer a claim. The ostrich strategy of burying one’s head in response to a good argument is not what I’m recommending. But defendants still have a fair amount of power in determining the trial’s agenda because they choose how much weight each defense gets, and in the process they’re able to tell the jury what the two sides disagree on and what this trial is about.
Perfecting Your Issue Selection
1. Consider Pros and Cons of Any Additional Claim or Argument Theme. We tend to think of trial arguments as arrows in our quiver and it is common to want as many as possible. But more is not always better. “More” can often just increase the complexity and the chances of a failed argument. To simplify, lets say that you have five great arguments and are considering adding a sixth that is just a good, but not great, argument. You might think, “Well, why not add it? Nothing ventured, nothing gained. If it fails, well we still have the five great arguments.” The problem is that the failure of the sixth argument might damage the credibility that the five great arguments were resting on. You could lose more than you gain.
2. Always Ask, “What Are We Leaving Alone or De-emphasizing?” A common emphasis in trial strategy meetings is on “What is our message and where should we place emphasis?” But it is equally important to ask yourself, “Where should we hold our tongue and keep our peace?” The conscious decision to leave some arguments alone and to play down others can be an important way to avoid adding fuel to a fire. Your fact finders’ attention is a finite resource and you need to spend it where it will do the most good and the least harm.
3. If You Don’t Know, Test. When a client is planning a one-day mock trial and still wants to use 120 exhibits because they’re all important, the critical step of deciding what matters most hasn’t happened yet. A mock trial that forces you down to 20 to 40 exhibits can help that happen. It is also common to wonder whether a given claim, argument, witness, document or other fact helps more than it hurts. In a healthy trial team, there might be passionate differences of opinion on the issue’s strategic value and weight. But if you don’t know, you should test. Construct a mock trial design that compares your case under two scenarios: one with the element present and one with the element absent. While that test won’t predict your trial outcome, it will provide a useful additional source of information on your issue selection.
We know from post trial interviews that in most cases, attorneys are overestimating the number of arguments, documents, and claims that will matter to jurors, and even judges. In the end, in most cases it will be just a few key issues that drive the decision. If we throw everything on the wall to see what sticks, then we are giving up our agenda-setting role to the decision maker and increasing the unpredictability of trial. If, on the other hand, we are making the hard decisions in advance based on good information, then we are increasing the simplicity, power, and predictability of our case. So pick your rabbits.
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Other Posts on Strategy:
- Know Your ‘God Terms’ and Your ‘Devil Terms’
- Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’
- Create the Conditions for a Creative Trial Strategy
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Photo Credit: Holly Ford Brown, Flickr Creative Commons