It’s the Kicker’s Fault: Placing Blame for Litigation Losses


blairwalshBy Jill D. Schmid, Ph.D.

As I sit here preparing myself for tomorrow’s Seahawk game (e.g., lighting the candles, saying the prayers, finding my lucky shirt), I find myself still in shock that we (I’m #12, so yes “we”) won that game. I would imagine there are some Minnesota fans that wouldn’t say we won, but rather they lost – lost because Walsh’s 27-yard field goal with seconds left in the game sailed left. While it’s easy to blame the last thing that happened for the loss (our win), that’s too simplistic and short-sighted. After all, there was Russell Wilson’s spectacular scramble and pass to Tyler Lockett after a botched snap that led to Seattle’s touchdown (the ONLY touchdown of the game). There was also Adrian Peterson’s fumble due to Kam Chancellor’s deft strip. Truth is Seattle won for a lot of reasons and, yes, luck was probably one of them.

Placing blame got me thinking about what we blame for litigation losses. Here’s just a few we’ve heard over the years:  “Jury was confused/dumb/in over their heads/not interested (take your pick),” “Judge made bad rulings,” “Didn’t get the jury instruction we wanted,” “Their expert was better,” “Plaintiff was really likable,” “We ran out of time in closing.” But again, the truth is, cases are lost for a variety of reasons. Rarely, if ever, can it be blamed on one thing – and especially the last thing (closing, jury instructions, jurors in deliberation). While a “Keys to success in litigation” is really more of a book subject than a blog subject, we’ve narrowed it down to a few keys that are over-looked and/or undervalued (from a jury standpoint, not a legal standpoint) that all contribute to litigation losses. It is not just one of these things; it is all of these things (among many others) that should be considered while creating your game plan. 

First, writing the game plan. We find that the strategy process more often than not begins after discovery. It’s a “what do we have here,” passive approach. Before or early in discovery, you don’t know everything, but you know enough to think about what you’d like your case story and theory to be. It will further develop as discovery continues, but without a goal – without a plan – then you’re left having to work with what you came up with, instead of what you went out and found. We have numerous examples of where an early strategy session led to questions and a plan that we were able to execute not just after discovery, but through the entire litigation process.

Second, deposition practice. We’ve written/blogged about the keys to successful deposition preparation numerous times. In a nutshell, while the saying goes that one cannot “win” in a deposition, we’d say one can have a significant negative impact on their chances for success with bad depositions of key witnesses. This seems to be one of the most over-looked parts of trial preparation. Most often, I hear, “We’ll never get to trial” as the key reason. Unfortunately, a bad deposition of a key witness can significantly impact whether or not you go to trial. To get back to the sports analogy from earlier, failing to prepare your witnesses for their deposition is like failing to have receivers practice catches under pressure during the pre-season. Key witnesses should undergo a preparation session that involves a mock exam. Give them as close to the actual experience as possible so that they know how to think on their feet and present themselves in the best way possible.

Third, jury selection. I’m a Seahawk fan. Have been since 1976. I’m still in therapy to get over the loss last year to the (I can’t say their name). IF there had been a trial for Tom Brady over “deflate-gate,” I can tell you without a doubt how I would have voted. If a Judge had said to me, “But, you haven’t heard the facts, so you could follow my instructions and apply the law?” I’d be able to eke out an, “I guess so.” But I can tell you, I’d listen to the “facts,” and then apply my own understanding of what those “facts” mean, and he’d be found guilty. The point is, there are people on the panel who will never be able to give you a fair hearing and you must do everything you can to find those people and either push for cause or use a strike. Selling your case, previewing your themes, and building rapport should be deprioritized if your priority is an effective jury selection strategy. Keeping a high-risk juror on your panel is one real reason you could lose.

Fourth, forgetting the game plan. Once trial begins, the distractions, the bunny trails, the urge to address every little issue can become so strong that the game plan goes out the window. I liken it to the “prevent defense” that teams use when they are ahead and are trying to prevent a score. In our a house we jokingly refer to it as the “prevent a win” defense since all it seems to do is give the opposition a lot of easy yards, and then an easy score.  Why not stick with the strategy that put you in the winning position to begin with? In trial, you have a game plan. Assuming it’s well thought out, it’s something you need to have faith in, and stick with. The ways we see this happen most often is in opening and closing when the defense abandons their plan and spends the first 10 minutes providing an unplanned attack/response to everything the plaintiff just said. This does not set you up for success.

Fifth, ignoring the jury instructions and verdict form. It’s been a long trial. The jury is overwhelmed by information. They have no idea what they are being asked to do. Yet they are given no instructions for how to deliberate and address the verdict form questions (the jury instructions do not count and might only make it worse). In closing, provide jurors with a game plan of their own – a “how to” guide. Tone, however, is key. It’s not a “you must do this” as that will likely trigger defensive behavior. Instead, it’s a helpful tutorial on the relationship between the case facts, the instructions, and an application to the questions. It’s a “short-cut” manual for how to do their job and do it well. Win the jurors over by helping them weed through the weeks of testimony and mounds of evidence.

This is the tip of the iceberg on blame-worthy acts contributing to litigation losses. The primary point is, don’t pick one thing and assume it was “that” –  that it was the kicker’s fault.

Countdown is on. Tomorrow this time, I’ll either be celebrating as my Seahawks advance or drowning my sorrows. Come on Hawks – we go this!

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