I never thought when I had Colin Cowherd’s The Herd on as a much needed distraction from all the political news, that there’d be a litigation strategy gem. Cowherd was interviewing Matthew McConaughey about his recent memoir, Greenlight, when they had an interesting exchange about the process McConaughey uses when working with writers/producers on a new project. Here’s a bit of the exchange: Cowherd began, “Years ago I thought about writing a screenplay, so I read a book about it called Save the Cat by Blake Snyder and he says to name the film before you start writing it; because everyone who starts writing a film has a great opening and great close, but those story arcs in the middle, you’re going to get lost so go back to what the name is. You have an idea, you say ‘I want to see the movie poster, so explain your thinking on that.” McConaughey responded: “What are the rules, what are we doing, what is our direction? Let’s write our headline first then write our story to get to it…What’s the poster look like? Before a film, I’ll sit down with the producers and directors and ask, ‘What’s the poster look like?’ Well, if I’m the lead and it’s a silhouette of my face taking up the whole poster, then I think this is going to be a real character driven story. But, if it’s a big wide shot and it’s me and an army of silhouettes coming up over the mountain well then this is going to be more of an epic story driven picture. So, what is that poster to just give us a little of a north star to head to….Put the goal in front of you…[Sure] the poster changes, the headline changes, but it’s usually similar to what you were aiming at.”
This exchange is a succinct encapsulation of the importance of early case strategy assessments. For years, we’ve talked about the importance of these assessments to guide the team’s discovery efforts and help them get to their ultimate goal, which is, clearly, some type of “win,” whether that be outright at trial (jury or otherwise), or a successful negotiation and settlement. Too often attorneys and their clients take a “let’s see what we get” or “what we find out” approach, which not only can be too time and resource consuming, but can lead down a road that is not conducive to the above stated goals.
There are three pieces of advice to be gleaned from the Cowherd and McConaughey exchange that directly relate to early case assessments and your discovery efforts:
First, even before any or much discovery has taken place, the team should create their poster or write the headline of the case they want. There are many questions that can be used to guide the strategy session and help land on that over-arching headline or case focus and the accompanying framework. A few are: Who or what is the case about? What do you want jurors (or the judge or arbitrators) most focused on? Where does the case begin? How does it end? What do you want jurors (or the judge or arbitrators) to do? What are the shortcuts in the case that jurors might be tempted to take? How can you offer them a more compelling shortcut? What values are at stake? Addressing these, and other, questions can help guide discovery in a more thoughtful and focused manner. Additionally, this gives everyone on the team a chance to stack hands on the goal and use it as they go about their various tasks.
At the risk of using one too many analogies (but with a holiday around the corner, this seems apropos), just as Thanksgiving has a different headline and framework than Christmas, it also means that the “to do” lists are different. Each case needs an individualized “to do” list and that list cannot be created if you don’t know what you’re planning. A lack of a clear plan leads to winging it and/or relying on old habits, neither of which is likely to lead to Thanksgiving turkey instead of Easter ham.
Second, just as Cowherd pointed out, it’s easy to get lost or forget the focus – lose the story in the middle. In the litigation world, this means losing sight of the goal and meandering away from the best framing due to being stuck in the weeds of thousands of pages of documents and hours and hours of deposition testimony. It is certainly important to be thorough but being thorough does not mean that everything that was uncovered is useful for reaching the goal. As discovery progresses, the team should weigh what comes in versus what should actually be used; sometimes even things that appear to tilt the scale might need to be left on the cutting room floor. It’s one of the most difficult things to do – edit. It might have taken a lot of work to get it, but that is not the barometer of whether it’s helpful to the case strategy.
Third, it is likely that the plan will undergo alternations. Amendments to the plan do not mean the early work was a waste of time; it’s an expected part of the process. Typically, though, no matter the amendment, the overarching framework and key goal remains intact. If, however, during the discovery process something is uncovered that significantly tips the scales, then it’s time to reconvene the team to modify the plan.
One of the best ways to not only help formulate a plan but to also find out how impactful some of your discovery findings are, is to conduct early discovery focus group research. This type of research offers clients the opportunity to collect data early in the litigation process to help guide discovery and determine the best focus for developing the case narrative that will be most persuasive to jurors at trial. Specifically, the data collected in early discovery focus groups helps clients determine what evidence and witnesses are most important to jurors. Often, jurors assign importance to issues that the trial team had not considered important and vice versa. Even worse, by the time the team discovers that something might be important to jurors, discovery has closed and there’s nothing that can be done about it.
Consequently, early discovery focus groups help the trial team determine where it needs to focus its case development efforts and which evidentiary paths should be explored. This research can also help the trial team determine which expert witnesses are needed and which fact witnesses will be most important to jurors. An added benefit, this type of research is one thing that can be successfully conducted via Zoom or video conferencing systems due to COVID concerns. Unlike mock trials where participants deliberate uninterrupted, early discovery focus groups rely on a segmented approach and facilitated group interviews, which is easy to accomplish over Zoom.
Another opportunity to help shape your litigation discovery efforts is something that has historically been underutilized in our field but has incredible value. In fact, we have recently conducted a lot of this research for some of our large corporate clients. Specifically, the trial team can conduct online survey research in multiple rounds with a control group and modifications being made to the case theory in subsequent rounds. This cost-efficient approach allows the trial team to hone their case strategy early in the case before devoting more time and expense to something down the road like a mock trial. For example, we might test a case theory with a sample of 200 jury-eligible respondents, and then test a modified case theory with a fresh sample of 200. In some instances, we have conducted six to eight rounds of these to answer key questions about how aggressive the client wants to be on an issue or whether or not it helps to make a particular argument or include certain evidence. With such a large sample, we can examine a variety of data points such as average damage awards to see how the modifications impact the damages that participants award.
The point is that early jury strategy work can have a tremendous payoff down the road. We have one client who is a devoted advocate of early discovery research who puts it best: “It’s like a ship leaving harbor. If it’s off even by one degree, which may not seem like that big of a deal at the time, the ship will end up in a very different place than where it had intended to go. That one degree adds up over time.” Early strategy development and jury research helps point the ship in the right direction.
