By Dr. Ken Broda Bahm:
With the coronavirus levels still raging, trials in most parts of the country are still on hold. But as vaccinations begin to make their slow appearance, it seems to be the time to contemplate the near future, where litigation will hopefully be back in business. So, as your matter moves toward getting a realistic trial date, it raises the question: “What now?”
For many, a good idea is to reboot the case with a strategy session: Call the team together, re-open the file, and develop a plan to move forward, to work toward resolving the case, or develop a plan for trying it. A strategy session can be a useful, creative, even fun way to knock the dust off the case, challenge your assumptions about what you’re doing, and come up with some new ideas. But there are better and worse ways of running that meeting. You want a setting that will yield the best ideas, and that means aiming for a climate where people feel comfortable and empowered to think outside the standard lines that you’ve all been sharing about the case. The following is my list of ideas for having an effective session.
Seven Best Practices for Strategy Sessions
1. Have Them
Don’t think that the strategy will take care of itself. Instead, take the time to ask yourself and your team about the plan and the message. Don’t save it for the eve of opening statements. Instead, address it early enough that it can inform discovery and revisit your ideas frequently in order to avoid falling into unquestioned assumptions. Finally, don’t leave it in the hands of just one person. You likely have a lead counsel, but that person is going to have blind spots as well.
2. Focus on the Faults
The advocate’s habit is often to believe the best about the case. But that can leave some gaps when it comes to thinking about the challenges. The strategy session should not focus primarily on the strengths of your case because, chances are, you are all already familiar with those. Instead, the strategy session should focus on the challenges, and the weaknesses. A good question for framing it is, “How would we persuade someone who might be inclined, initially at least, to favor the other side?”
3. Include Those With Varying Forms and Degrees of Case Familiarity
In complex litigation, the team is often large and varied. Some attorneys might specialize in certain witnesses and issues. Some staff might be focused on the details, deadlines, and documents, while others on the team are focused on the big picture. Include them all in the strategy session. The strategy has to work at a high level, obviously, but it also needs to resonate with the details of the case. To come up with answers that will work in all contexts, you will want to hear from those who view the case from as many angles as possible. Including some people who are relatively new to the case can be helpful as well, in getting a fresh perspective.
4. Record Your Ideas Creatively
The goal of the session is to develop some takeaways: themes, stories, and general messages. To keep track of them, you will want a way to record the thoughts of the group. You can’t go wrong with a good old-fashioned flip chart. My current obsession, though, is an iPad with the newer Apple Pencil. That allows you to have all of the flexibility to write and sketch, but with the easy ability to save and share it digitally. I have found that using an iPad or computer connected to a monitor or projector (or screen share, if you’re meeting virtually) is a good way to keep the group focused on the ideas being generated.
5. Bookend Your Research
When you have a case that benefits from an organized strategy session, you probably also have a case that will benefit from focus group or mock trial research. However, it is important to remember that the mock trial is not your strategy session. Instead, it is useful to bookend your research by having a strategy session before and after. Before the mock trial, it is useful to meet in order to focus on what you want to test, how you should represent the other side, and the best ways to frame your message. After the mock trial, the strategy session should focus on dealing with the biggest challenges and opportunities that you discovered from the mock jurors.
6. Rely on a Mix of In-Meeting and Out-of-Meeting Contributions
In coming up with creative ideas, people work differently. Some thrive in the group environment, bouncing their thoughts off of others. Some, however, will do their best thinking on their own, and want to bring an idea to the group only after they’ve polished that idea in private. For that reason, it is a good practice to give people assignments they can do before the session. For example, ask them: What do you see as the top three problems for this case, and what is the best way of responding to each? What are our five greatest strengths and how do we leverage them? What is our theme? What is a boiled-down version of the story we want to tell in trial?
7. Make It a Little Competitive
Giving an assignment like the one discussed above will motivate your team members to bring their best, and a little rivalry is not a bad thing. In one particularly large and complex case I worked with, we had spent years leading up to a bellwether trial. In that case, we came up with the idea of asking everyone on the team — lead counsel, consultants, paralegals, secretaries, and clerks — to come up with a two-minute version of the trial story. The results, submitted anonymously and judged by everyone, then informed the development of strategy for opening and witness order.
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Other Posts on Strategy:
- Keep Learning While Your Case Is in Limbo: Seven Ways to Use the Pause
- Treat Sympathy as a Low-Power Strategy
- Use Moral Framing as an Argument Strategy