Case diagrams With this organizational tool, attorneys list the elements of the case they are required to prove (or intend to disprove) then list all the evidence they intend to leverage in support of each element. The purpose is to ensure they address all the issues of the case and to make certain that meeting one element does not require undercutting the evidence in support of another.
Theme and theory These messaging tools bring force and greater direction to the evidence. The theme is a sound bite that encapsulates logic or emotional force of the attorney's case. The theory of the case is a logical description of events that the attorney wants the judge or jury to adopt as their own perception of the underlying situation. The theory is often expressed in a story that should be compellingly probable. Theme and theory become strategic tools when they serve as the core for the organization of the case. These tools are effective when every aspect of the trial, including the actions and reactions of the adversary, are organized and incorporated in support of them. In practice, a lawyer writes the closing argument first and then works backward to plan the argument.
Maneuver strategy Maneuver is a strategic philosophy that leverages the indirect approach through its focus on individual decision making and perception. It is ideally suited to litigation, wherein the jury's perception decides the outcome. The core of maneuver is the decision cycle as described in
Boyd’s
OODA Loop. This
model notes that in decision-making, individuals (witness, opposing counsel, jurors) go through a process of observation (receiving information), orientation (deciding what the information means to them and what they might do about it), decision (picking a course of action from among the possibilities), and then acting (taking the course of action). Like most models, the OODA Loop is not a technical description, but it is rather a tool for illustrating important points for strategists. While litigation presents opportunities for information denial through the rules of privilege and work product, even more opportunities to shape the conduct of opposing counsel and hostile witnesses arise in the orientation phase. Psychology offers deep insights into how individuals perceive and misperceive information. Moreover, an individual’s perception of a situation affects how he frames his decisions. By altering perceptions, litigators can shape the decision the party will make. Coupling this understanding of psychology with utility theory / economic
game theory, attorneys can set the stage for adversarial parties to take actions that serve the attorneys’ plan. At the same time, the attorneys must protect their own decision-making while retaining a degree of control over the evolving situation. The methods for protecting one's own decision-making include making accurate predictions (using tools from
psychology and
utility theory), validating planned actions, having a clear focus of effort and information flow, and building sound, powerful, and flexible plans, as can be done using a “line of effort.”
Lines of effort A line of effort can organize the attorneys' planned actions in the way a case diagram organizes their evidence. Because of the uncertainty inherent in trial practice, the litigators’ strategic plan must be powerful, yet flexible, to remain effective. The line of effort produces the needed power and flexibility by structuring the plan around the
purpose and an achievable
end state that realizes the purpose, the
aims (the elements necessary, or chosen to achieve the end state), and the
levers or
effects (the actions the counsel can take that are likely to bring about the targeted aims). The visual nature a line of effort allows the attorneys using it to see the entirety of the trial, ensuring their plan comprehensively addresses the situation, and identifying points of high uncertainty where having prepared branch plans would be prudent. It further allows the attorney to exploit unexpected opportunities with an understanding of what elements of his/her plan will be enhanced and which will require further adaptation, making the opportunistic action not only clear-sighted, but focused and efficient. In a fluid situation, any levers or aims rendered obsolete by changes in the situation are swapped out, retaining the bulk of the previously analyzed and validated plan intact, and providing a clear focus for the branch plan or substituted actions. ==References==