Litigation Strategy

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. 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. Professor 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. 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.

Strategy is the process of designing and achieving a desired final outcome. 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. In litigation, direct strategies argue what the law does or does not say; what the facts are or are not; or 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.

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