By: Of Counsel Lyndon Laird
© 2021 Lyndon Laird · All rights reserved
I write about business, power, and strategy
The secret to hard-hitting litigation (and most things in life) is that only a few things are important. Only a few things really matter in a given case. Sometimes it’s just one thing. The decision-maker should identify those few things, focus on them like a laser, and delegate everything else.
It’s not always easy to identify the crucial few things. Sometimes a seemingly small detail can be very consequential. So the decision-maker has to be able to “zoom out” and see the big picture as well as see what “details” are important. And this is tricky because “It is impossible to overestimate the unimportance of practically everything” (James Maxwell).
All the “busy-ness,” activity, and productivity in the world may amount to nothing if the busy-ness relates to an unimportant issue. Worse, the busy-ness can be of negative value because it (1) consumes our limited resources (time, energy, attention, money, cognition, and decision-making) and (2) displaces and distracts from what is really important.
Only a few things really matter in a given case. Sometimes it’s just one thing.
What’s important and what’s not important? That’s for you to find out. It will be different in every case. But the crucial few that account for 90% of a matter’s value are:
- What is the single “key” to the case? The correct strategy that perfectly addresses the specific facts and law? The hinge upon which the entire result depends? Most lawyers are too busy going through the motions or billing time to see it.
- Key depositions–get the crucial few admissions, concessions, etc.
- Counterclaims if appropriate—the best defense is a good offense. The fear of sanctions or being ordered to pay the other side’s attorney fees is powerful.
- Motions for summary judgment, motions to dismiss, and motions to strike experts—these can end the litigation in the blink of an eye.
- The opponent’s situation, goals, and weaknesses—do they need money?
- The negotiations—This is crunch time. Everything else is funneled into the final negotiations. Better prepare for it like your case depends on it, because it does.
The other 10% includes:
- “All warfare (and litigation is a form of warfare) is based on deception”–Sun Tzu, “The Art of War”–2400 B.C. Ignore this at your and your client’s peril.
- The value of the case—is it worth your time and trouble?
- Financial responsibility—is there insurance and can the other party respond in damages?
- Venue and the judge—is the game fixed at the outset?
- Does the opposition suffer from a fundamental misconception about a crucial fact or the law? It happens a lot. Exploit it.
- Getting the discovery you need–again, a crucial few documents, admissions, etc. will make all the difference.
- The resources of the parties—sometimes litigation is a war of attrition.
- The opposing attorney’s situation, goals, and weaknesses—does he need money?
- Making the client happy—their goals may be non-monetary.
- Theory of the case–what is your “story”? Why should your client prevail? What are the causes and effects? Does it make sense? Is it compelling?
- Theme of the case–what memorable and persuasive word or few words encapsulate your case? Or an opposing witness? Argue them at every opportunity. Get opposing witnesses to support them in depositions.
- How do you answer the opponent’s story and theme? Keep it simple. Keep everything simple.
Focus on these things. Everything else is worthless and detracts from your effectiveness in a case.