Litigator’s Playbook:
As We End One Year and Begin Another!

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

Now is the time of year when those involved with civil litigation typically do – or want to – slow down. Plaintiffs want to settle so they can pay for holiday presents, lower their credit card payments, or have some money with which to begin the new year. Defendants want to close their books, decrease their financial liabilities, and get a handle on potential legal costs going into the new year. These are reasons enough for plaintiffs and defendants to work toward settlement in this season of giving and receiving.

The risks of going to court at this time of year often appear more exaggerated to litigators than at other times. Being motivated by the need for closure and the desire for a “bird in the hand,” plaintiffs and defendants become loath to put their financial decisions in the hands of someone else – particularly jurors whose motivations in this season can be even more complex – and unpredictable – than usual. Jurors may feel compassion for a plaintiff and willing to “lend a helping hand” by awarding more money than usual, or they may be even more budget conscious, unwilling to give someone a “handout” when they’ve struggled to find money for their own gift-giving.

If time permits, pause and take a deep breath. As 2011 begins, use this breathing space for your own kind of huddle with clients and witnesses to finesse what and how to later make presentations in court. If possible, showcase your case in some kind of “dress rehearsal” – a focus group, mock trial, CasePreview – to learn more about how jurors digest your information, how to ascertain profiles of jurors to strike or keep, and of course, how to most effectively present your case.

I wish you all a wonderful holiday season and Happy New Year!

I look forward to introducing you to more of my ideas, and learning from you what you’d like explored, in your Litigator’s Playbook in 2011. Have fun and be safe!