Knowing Your Case Isn’t Enough

There is a point in almost every significant piece of litigation when the lawyers know the case extraordinarily well.

They know the documents. They know the depositions. They know which witnesses are helpful and which ones make them nervous. They know every inconsistency in the opposing witnesses’ testimony. They know the applicable law, the procedural history and where virtually every important piece of evidence can be found.

That’s necessary.

But it isn’t enough.

Over the years, I have worked with some very good lawyers who could answer almost any factual question I asked about their case. But when I changed the question, the answers sometimes became considerably less certain.

What do you want the jury to care about?

That’s a very different question.

And I think the distinction between those two kinds of knowledge—knowing your case and knowing what to do with your case—is one of the most important distinctions in litigation.

The Jury Hasn’t Lived With Your Case

One of the dangers of litigation is familiarity.

By the time a case approaches trial, the lawyers may have lived with it for years. They have read thousands of pages of documents. They have participated in dozens of depositions. They understand the personalities, the history and the significance of facts that might otherwise appear completely innocuous.

The jury has none of that.

Neither, for that matter, does a judge encountering the dispute for the first time.

We sometimes forget how much accumulated knowledge we are carrying into the courtroom. A document that seems devastating to us may mean virtually nothing to a juror until somebody explains why it matters. A contradiction that seems obvious may disappear amid twenty other facts. A witness we have spent two years distrusting walks into the courtroom as a complete stranger to the jury.

The factfinder doesn’t know what matters.

We have to teach them.

And that requires something different from mastery of the file.

It requires choices.

Every Case Is a Series of Choices

When I work with lawyers on a case, I am often less interested initially in what they know than in the choices they are making about what they know.

For example:

What should the jury understand first?

The answer isn’t necessarily the first thing that happened chronologically.

What do you want the jury wondering about?

Sometimes creating a question in the factfinder’s mind is more powerful than immediately supplying the answer.

Which weakness should you confront rather than hide?

Every substantial case has weaknesses. Pretending they aren’t there doesn’t make them disappear. Sometimes acknowledging a problem before your opponent exploits it can fundamentally change the way it is perceived.

Which witness should the jury hear from—and when?

Witness order isn’t simply a scheduling exercise. The sequence in which information is revealed affects the way subsequent information is understood.

And one of my favorite questions:

What is the moment in this case that you want the jurors talking about when they finally sit down to deliberate?

Every case has moments that are more powerful than others.

It may be a document.

It may be an admission.

It may be a devastating inconsistency.

It may be a demonstration.

It may be one answer from one witness that suddenly causes a dozen other facts to make sense.

Finding those moments—and deciding how and when the factfinder should experience them—is part of trying a case strategically.

Don’t Confuse Chronology With Strategy

Lawyers naturally tend to organize information chronologically. It makes sense. Something happened, then something else happened, and then something else happened.

Chronology is often useful.

But chronology is not necessarily persuasion.

Think about almost any good story. The storyteller doesn’t simply dump information on the audience in the order in which it occurred. Information is revealed deliberately. Questions are created. Expectations develop. Important information arrives when the audience is prepared to understand its significance.

A trial deserves the same level of thought.

That doesn’t mean turning litigation into theater or manipulating the facts. It means recognizing that the order in which human beings receive information affects the way they understand that information.

The evidence remains the evidence.

The question is how to make its significance unmistakable.

Why Should They Care?

Ultimately, I come back to one question more than almost any other:

Why should the judge or jury care about this case?

Lawyers sometimes assume that because something is legally important, the factfinder will automatically find it compelling.

That’s not necessarily true.

A jury can understand your argument intellectually without becoming invested in it. They can follow the evidence without appreciating why the result matters. They can even believe much of what you’re saying and still not feel compelled to act upon it.

The winning litigator has to bridge that gap.

That means understanding not only what happened, but what the case is really about.

Fairness?

Trust?

Responsibility?

A promise that wasn’t kept?

Power that was abused?

Someone refusing to accept responsibility for a decision they made?

The answer will be different in every case. But somewhere beneath the documents, testimony, causes of action and jury instructions is a human conflict.

Find it.