By Thomas M. O’Toole, Ph.D.
Every successful strategy development session I have conducted with clients culminated in an “a-ha” moment, where we collectively came to some sort of realization about the case…a moment of clarity you might say…that fundamentally changed the way we presented the case at trial. These are the moments strategists live for and they are the difference makers when it comes to strategy development. The vast majority of these moments tend to result in a perspective shift for the case theory and story. In other words, the realizations usually result in telling the story from a different perspective within the confines of the case. These sort of perspective shifts can be devastating for an opponent. Perspective shifts can undermine or eliminate the offense for the other side and narrow the case in a manner that makes it difficult for the other side to prevail.
One of my favorite examples of the perspective shift in lawsuits came from attorney Mike Lewis, who was the main architect of the lawsuits brought by the States against Big Tobacco. Lewis worked for the plaintiffs in those cases. His strategy was a brilliant example of an effective perspective shift. Lewis was frustrated with the poor success rate plaintiffs had against Big Tobacco. While there was strong evidence about what Big Tobacco knew and hid from the public, Big Tobacco had a simple and powerful theme: personal choice. In other words, Big Tobacco had prevailed in so many cases because it would simply argue that the plaintiff made the choice to become a smoker. This created a simple and powerful focal points for jurors by drawing in the element of personal responsibility. This theme resonated with jurors across the country and led to low success rates for plaintiffs.
Lewis refused to accept the status quo. His frustration led him to come up with a brilliant strategy that changed the face of the litigation. His strategy was to have the states sue Big Tobacco, rather than have individual plaintiffs sue. This would effectively eliminate Big Tobacco’s most successful defense (i.e. personal responsibility). The states, which had to bare the brunt of the medical costs associated with caring for many of these plaintiffs, had not made a choice. These costs had been forced onto them. This strategy led to one of the largest settlements in American history, which was the Tobacco Master Settlement Agreement.
While the tobacco litigation involved a change in the parties to the litigation, this is not required to achieve a successful perspective shift in a case. A while back, I assisted some attorneys on a case where a group of plaintiff investors were suing a group of professionals for assisting an individual who had set up a large pyramid scheme. The professionals were not directly involved in the sense that they were not the ones who directly perpetrated the fraud. Instead, the evidence suggested a series of disturbing red flags that should have caused them to cease their professional services to the individual who was committing the fraud. Their professional services were responsible for the creation of the entities that were used in the scheme.
One of the biggest weaknesses for the plaintiffs in this case was the plaintiffs themselves. They had a variety of bad facts associated with them and did not perform well in their depositions. We knew that if the defense could make them the focus of jurors’ discussion in deliberations, it would not bode well for us. This created challenges for telling our story. Our “a-ha” moment came when we decided to take a page out of Lewis’s book and change the perspective. Rather than focus on how the conduct of this group of professionals harmed the plaintiffs, we decided to craft a story about how these professionals helped the person committing the fraud evade the authorities. This accomplished a couple of things. First, it put the “hot docs” such as emails and texts between the group of professionals and the perpetrator at the forefront of the discussion. Second, it created a dichotomy of the professionals against the authorities. In other words, rather than making this case about the plaintiffs going after the professionals, we made it a case about the professionals evading the authorities. While the authorities were not a party to the case, this perspective shift essentially treated them as a party at the story level. Even more important, this perspective shift functionally replaced our plaintiffs (with their own sets of troubling facts) or at least aligned them with the authorities at the story level of the case.
As these examples demonstrate, perspective shifts can make a profound difference. They can reduce the influence of key weaknesses for your client or make it very difficult for the other side to pursue those weaknesses while bringing key strengths to the forefront.
These are just two quick examples of an effective perspective shift. I could write a long paper filled with more examples. After a recent strategy session where we achieved one of these “a-ha” moments, the attorney asked me how often that happens with clients. It was a good question and he was surprised to hear that it happens very often. Sometimes, it feels like there is no other way to look at a case and that such a perspective shift is just not possible, but that is the value of obtaining an outside perspective. It helps you see the value in aspects of your case that you had not previously appreciated.