Some Thoughts About Trial Strategy

Trial strategy is an attorney’s comprehensive plan that when executed will provide the best chance of success in a litigated matter. Attorneys may use certain tactics throughout a trial as tools for specific purposes designed to implement this strategy. Since every legal matter differs when considering the underlying facts of each matter, applicable law, the measure of damages, defenses, etc., so must every trial strategy differ. Approaches to trial strategy may be far-ranging. There are basic, straightforward ideas as well as concepts that delve into the psychological realm and utilize other advanced approaches.

The basic concepts of trial strategy involve the simple process of organizing the case into a complete presentation that the factfinder, typically, a jury, may clearly understand. As a dynamic mechanism, an effective trial strategy must allow an attorney to anticipate a trial’s events and proceed contingent upon these events. At any key point in a trial, an attorney must always be in the best position to proceed.

One part of a trial strategy may be formulating the theme of the case. The theme of the case may be a short phrase that captures the emotional appeal of the case. The underlying theory of the case will provide an explanation or argument based on the facts that should lead to the best possible outcome. As a visual supplement to oral argument and the testimony of witnesses, many attorneys use case diagrams to connect evidence to the case’s important events. An advanced version of this tool is using a line of effort to match actions to specific effects that provide an explanation of resulting harm or lack thereof, for example.

Some attorneys use what may be considered advanced trial strategy skills that are based on psychology and military maneuver philosophy. Some have criticized advanced strategic techniques because they convince juries and obtain favorable verdicts through action unrelated to the case’s merits. Some prosecutors have used such strategies against defendants poorly equipped to fight back.

In one sense, trial strategy provides the organization that maximizes the combined effect of every piece of evidence, while presenting a clear, decisive argument to the factfinder. An optimal trial strategy is a great equalizer. Without a well-developed trial strategy, a small law firm with a poor client has little chance of success against a larger law firm with better resources, regardless of the merits of the case.

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