Fighting The Battle in Front of You
Anyone with extensive trial experience understands the value of calling on that experience when entering into a new litigation or trying a new case. Good attorneys see patterns and commonalities across cases and recognize the benefits those patterns provide. Seeing patterns allows an attorney to quickly assess a new case, to figure out a good place to start researching, and to identify issues that are likely to be problematic. Because such experience eliminates the need to reinvent the wheel for each case that comes along, it’s not surprising that both attorneys and trial consultants often draw comparisons between the current litigation and past litigations. And while those comparisons are largely beneficial, they also contain pitfalls.
Unfortunately, such extensive experience can cause you to close your mind too early on a case. By assuming that this case will fit into the same pattern as previous, similar cases, you can miss vital differences—some of which can completely change the trajectory of the case. Overlooking those differences—the unique challenges present in this case—can leave you blindsided by how differently jurors react to it than they have to cases you have tried before. But how can attorneys and trial consultants keep their minds open? How can you manage to look at a case with fresh eyes when you can’t un-know what you know?
A method that we find useful is contemplating this story: A fire chief with decades of experience tells an interviewer: “The next fire I walk into, I won’t know anything.” Surprised, the interviewer pointed out his position as fire chief and his decades of experience. But the chief explains: “When I arrive on scene with that mind-set, I glean more new, specific information from others. By affirming uncertainty, I get more people to own what they see and to communicate it. Because while we have all seen a lot of fires, none of us has ever seen this fire.”
Adopting the mantra, “I’ve never seen this fire before” reminds us that each case—with all of it nuances and concrete details—strikes jurors differently. Cases may have commonalities but nonetheless, the themes and arguments that worked in the past will not necessarily work here. The jurors who responded so favorably to you before may not be the jurors you want now. Different hot button issues will be present and different emotions will be evoked. Being mindful of those things allows us to balance our previous experiences and successes with discovering what makes this case different. And those differences must be investigated in order to find the optimal strategy for this litigation.
So while it’s wise to remember the lessons you’ve learned from the past, it’s also important to remember that each new case/litigation is its own fire—with its own flashpoints, its own patterns, and its own dangers. And the best way to be successful in this case, is to make sure you aren’t still trying the last case.
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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 decisions.