Litigator’s Playbook:
Exploring Plays, Plans, Tactics and Strategies

by Jeri Kagel, M.Ed., J.D.

I began writing for the DeKalb Bar newsletter this past fall. I was eager to convey my thoughts, ideas and experiences as a trial consultant to a broad spectrum of attorneys: attorneys who go to trial and those who rarely try a case; attorneys curious about the psychology of their clients and decision-makers (jurors, judges, arbitrators, attorneys and others); attorneys interested in focusing on how different methods of communicating information influence what people learn and understand; attorneys wondering how their practice resonates with their own personal energy, goals and well-being.

As we began 2010, we decided to continue this column and give it an ongoing title. I wanted the title to capture my goals for writing while encouraging people to read my column. I took a month off to let ideas percolate and was lucky enough to meet with my web designer who suggested what you now see in front of you: Litigator’s Playbook.

Historically, playbooks were books containing scripts used by actors. More recently, playbooks are used in sports and politics, describing plays, plans, tactics and strategies. Here, I hope Litigator’s Playbook provides something similar for attorneys – thoughts about “what to do and why” and “how to do it and when.”

These are my goals for this column. Now let me tell you something about me. My professional life has continually evolved, with one discipline leading to something else – a little different, but somehow connected. I began as a physical therapist in Boston. I worked in a neuropsychiatric hospital, leading to my learning more about psychology. I moved to Atlanta for graduate school in counseling psychology and began practicing as an individual and family counselor. (It’s the family counseling that provided me with some real hands-on experience with how people attribute blame – my first article in this newsletter.) I found myself getting restless doing therapy, wanting to do more critical/logical thinking and, as strange as it may sound, one day, on an airplane, I thought, “I can be an attorney.”

With that airy thought, I studied for and took the LSAT, deciding that if I did well enough I’d go to law school. My score was high enough that I returned to Boston for law school (I can’t think of a better city in which to be a student). I graduated and practiced law for a few years before deciding that I was much more comfortable in the background rather than being “center stage.” It was at about the same time that I began hearing about something called jury consulting.

For the last 15+ years I have been consulting with attorneys on all the psychological/communication aspects of their litigation. I have prepared difficult witnesses for depositions, designed and implemented focus groups and mock trials (which I call CasePreviews), developed case themes, participated in voir dire and jury selection, and assisted attorneys and their clients/witnesses with their presentations – for mediation, opening statements, testifying, etc. Until recently, most of my work had been out of state. Now, even as I continue with my trial consulting, several attorneys with whom I have consulted have begun to work with me in a different way – as a kind of advocate/coach as they consider, or commence, some kind of transition in their personal or professional lives. Whether I am hired as a trial consultant or career coach, I combine my therapeutic ear with my legal expertise to help my clients find solutions to problems.

I have found over the years that I focus less on picking a jury and more on how to present the case story so that my client’s point of view resonates with a wide variety of jurors. Much of my work is centered on teaching the tools and techniques of effective storytellers and teachers to attorneys, their clients and witnesses.

When I’m hired as a trial consultant, I enjoy joining the litigation team. I take pleasure in helping attorneys and witnesses maximize their own strengths and the strengths of their case while minimizing the difficulties in content or presentation. I love coming on board with attorneys who have lived with the case for a long time and then offering my fresh, sometimes different and fresh, perspective – not to undermine the attorney’s hard work, but to enhance and broaden the attorney’s vision.

That is who I am and what I believe.

I would love to hear from you, the reader. Please let me know what aspects of representing a client, or taking a case to trial you’d like to see discussed in this column. Your thoughts will increase the educational value and informational resource of this, your Litigator’s Playbook!