By Thomas M. O’Toole, Ph.D.
Some of the best case strategies that we have developed with our clients over the years resulted in the other side having to defend something at trial that they never realized they would have to defend…something they took for granted. This is a strategy I learned during my college debate career (yes, I was a college debate nerd…but you would be surprised how many of your peers in your industry were as well). In my days of college debate, one of the most effective strategies was something called a plan-inclusive counterplan, or a “PIC” for short. The idea was that after the first (affirmative) team made their argument to start the round, the other team agreed with everything that side said except for one small, but incredibly important detail, something they never realized they might have to defend…something they took for granted.
I have always thought this was a brilliant strategy, symbolic of a fundamental principle of argument: if you can shift the debate to something else, ideally something the other side is not prepared to defend, you can change the overall narrative and consequently, the perceptions of who is wrong and who is right. This is what typically happens in our most productive case strategy sessions when we have “a-ha” moments: we start talking about one small issue in the case that had not been given much consideration, and realize that if we really focus in on that, it changes the way everyone looks at the case.
Here is an example from a case I worked on a few years ago. The plaintiff was an outside sales person who was claiming that he was treated poorly and pressured out of his contract. During the discovery, the plaintiff had gotten his hands on some internal emails from the defendant that suggested our client did not think highly of him and frequently spoke of him in unflattering ways. At first glance, this was not a good case for the defendant. However, as we discussed the case during our strategy session, we realized that the plaintiff was trying to make this essentially an employment case, but he was not an employee. He was an independent contractor. The more we focused on his status as an independent contractor, the more we realized that it changed the way someone looked at the case. We developed this story about the plaintiff being a man who was in business for himself. This cast us as his customer, not as his employer, which changed the expectations for how the plaintiff should behave and communicate. This was particularly helpful because we had a series of emails the plaintiff had written to us that were unnecessarily harsh and aggressive. In short, they were the kind of emails a smart businessperson would NEVER send to a customer. From this small fact, we were able to build an entire case narrative based on principles that jurors could relate to (i.e. customers always come first, etc.). This made the case about the plaintiff, his choices, and the accountability for his choices.
This small detail that no one had really thought about before our strategy session fundamentally changed the story of the case. It was a great example of forcing the plaintiff to defend something he was not prepared to defend, which gave us even greater momentum. Like the PIC in college debate, this strategy sidestepped so much of his offense by making the case about a different issue that he was not prepared to address. To no one’s surprise, the plaintiff agreed to a low settlement amount on the first day of trial.
The only hesitation I have in writing this blog post is that it could reinforce attorneys’ tendencies to get lost in the weeds. That is not the point here at all. Instead, I am suggesting that you be on the look-out for the one or two weeds that speak to and change the big picture story of the case. In short, turn a weed into a winner!