Know Your Opponent’s Strengths
During trial preparation, it is easy, and tempting, to hone in on the weaknesses in your opponent’s case and discount their strengths. Easy, because the weaknesses often highlight themselves and tempting, because developing arguments to expose such weaknesses comes quickly to experienced trial lawyers. While we would absolutely encourage you to capitalize on those weaknesses, we would also recommend 1) garnering feedback from multiple perspectives to develop a detailed understanding of the opposing cases’ strengths and 2) focusing the majority of your trial preparation on analyzing and responding to those strengths.
In spite of the intense satisfaction that comes with unequivocally proving an adversary wrong, dismantling their weak arguments may not be enough to discredit their strong arguments. Oftentimes, cases are assessed using a formulaic approach—which tends to conceive of trials as a set of building blocks that will collapse if you knock out some of the blocks. Unfortunately, juror decision-making isn’t that regimented or linear. Instead, we would recommend an approach similar to that of a football team scouting out their rival or a boxer preparing for a specific opponent. In both cases, exploiting their opponents’ weaknesses is only a part of the plan. They recognize that the key to victory is appreciating and preparing for their opponent’s strengths.
Because our belief systems and perspectives seem so right to us, it can make it difficult to appreciate that a rational person, upon hearing our explanation of the facts, could draw a different conclusion. And since we tend to surround ourselves with people who share our perspectives, it is not unusual for us to work with trial teams where almost every member shares a specific view on the case. In those circumstances, it is extremely common for different perspectives—whether that’s from a trial consultant, other members of trial team, or mock jurors—to be dismissed or attributed to a lack of a full understanding of the facts.
We would encourage you to intentionally resist that type of “groupthink.” Much in the same way that football teams have practice squads that mimic the strengths of the opposing team and boxers enlist sparring partners who are strong in the same areas as their opponent, we would suggest surrounding yourself with people who have different—and conflicting—perspectives as you prepare for trial. While this structure does force you to confront the hard truths associated with your case, it allows you to hear them from a team member prior to trial, rather than from a juror after the trial.
One of the most valuable things you can do during trial preparation is to create an environment where an appreciation for the opposing arguments is welcomed and encouraged—not dismissed or frowned upon. So seek out trial consultants who will point out strong aspects of the opposing case. Encourage that type of thinking in your trial team. And be receptive to it when you hear it from mock jurors. They aren’t simply playing devil’s advocate, not being a team player, or misunderstanding the facts. They’re giving you a scouting report—and in turn, you’ll be prepared for whatever is coming.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict d