Trial Lawyer Resource Center

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The term “strategy” has been bantered around by so many different people in so many different ways under so many different sets of circumstances that often we lose sight of the true meaning of the term “strategy.”  Some people will say that the strategy of a team in the Super Bowl Game is “to put the ball in the end zone.”  That is not strategy at all but merely an end result or goal.  Others will say that the strategy in a real estate negotiation deal is to “sign the papers and wrap up the deal.”  That is not a strategy at all but rather a destination at the end of a journey.  Therefore, for us to begin this exercise as trial advocates, we must have a plain and straightforward definition or explanation of the term “strategy.”  Accordingly, we will define “STRATEGY” as follows:  Strategy comes in two parts – (a) the step-by-step logical, methodological, and analytical means by which one determines a course of specific action or actions to take or to avoid in order to defeat one’s opponent on a given issue, in a given battle, or in any other form of competition or combat; and (b) a positive approach combined with a negative approach (i.e. playing devil’s advocate) to putting into effect those actual steps that must be taken or avoided to defeat your opponent.  “Strategy” is therefore not the end but rather the means to the end.  Your strategy – simply put – is the way you figure out how in the world you are going to figure out a way to defeat an opponent in any given situation combined with figuring out all of the different ways your opponent is going to utilize to figure out a way to defeating you.  Here is the problem – most trial advocates only take the first part of the approach…by figuring out the steps they need to take to defeat their opponent and ignore the logical analysis being conducted by the opponent as he or she figures out the steps to take or avoid to defeat you.

What this all means is that you, as a trial lawyer in the handling of every case, must do a complete and thorough, logical analysis and assessment regarding not only your own strategy but the predictable strategy that will be utilized by your opponent in his or her attempt to beat you and your client.  The most effective and efficient way of accomplishing this is through what I refer to as the “O.S.P.A. model.”  This, of course, refers to you conducting an “Opposition Strategy Prediction Assessment” in all of your cases and as to all issues and as to all aspects or parts of the trial.

    The O.S.P.A. should be done with respect to all phases of the case, including basic pleadings, written discovery including the interrogatories and production requests and requests for admissions, depositions, matters pertaining to settlement, trial preparations, mediation, voir dire, opening statement, examination of witnesses, pretrial and trial motions, summation, jury instructions, and more.  I will limit a sample approach to this “model” by simply going through an O.S.P.A. in one phase of a case or trial.  In this instance, we will work on an O.S.P.A. regarding the opening statement to be given by opposing counsel – defense counsel – in a two-car motor vehicle collision where one vehicle rear-ends the other and where the plaintiff claims as his primary injury that of a herniated disc in the neck.  The Opposition Strategy Prediction Assessment should be carried out as follows:

    Step 1 – Who is the lawyer giving the opening statement?  Is he bright or not so bright?  Is she articulate?  What are his physical characteristics?  What are her vocal characteristics – loud or soft, tone of voice, characteristics of enunciation and pronunciation, and more?  Is he emotional or calm?  Does she demonstrate passion?  Will he be low-key or more flamboyant?  What is his track record in other cases in opening statements, and what are my assessments based on those transcripts and talking to other lawyers about him or her?  How does he dress?  What is her overall demeanor generally?  Ethical or borderline ethical?  Knowledgeable of the law and procedure or not?  Once I have asked and answered all of these questions about the lawyer who will deliver the opening statement for the opposition, I can predict with a very high degree of accuracy how that lawyer is likely to act during opening statement and how that lawyer is likely to “deliver” the opening statement, regardless of the form and substance of what is being said.  This, of course, will have a lot to do with how I approach the case; how I approach my opening statement; and even as to the jurors I may choose to strike from the panel.  For example, if I know that my opponent is a more loud, boisterous, and flamboyant advocate, I may choose to keep a juror whom I believe will tend to dislike and distrust that type of a personality.  When I have done my full assessment on this aspect of the O.S.P.A., I should know exactly what to expect and the way in which my opponent is likely to deliver his or her opening.

    Step 2 – What is my opponent likely to say in the first 30 seconds of his or her opening?  What impact words or language will be used?  What catchy phrase will be used?  What theme will be used?

    Step 3 – What is my opponent likely to say when he talks about my client as a person?  A plaintiff in a lawsuit?  The client’s history of work ethic and character traits?

    Step 4 – How and by what means will my opponent frame “the issues in the case”?  What will he or she choose as “the issues in the case”?  Why will my opponent choose these “issues” as the issues in the case?  Why not others?

    Step 5 – What demonstrative aids will my opponent use in opening statement on issues of fault?  What demonstrative aids will my opponent use on issues relating to causation?  What demonstrative aids will my opponent use on issues relating to damages?  What other demonstrative aids might my opponent use on issues relating to affirmative defenses or other matters?

    Step 6 - Will my opponent say anything about me as a person or a lawyer?  If so, what will be said?  Why?

    Step 7 – What will my opponent do or say that will be legally objectionable during his or her opening statement?  Should I object?  Should I keep my mouth shut?  Will I be overruled or sustained?  What difference does it make?

    Step 8 – What “evidence” will my opponent refer to and discuss?  What witnesses’ testimony or likely testimony will he discuss and why?  What records or documentary evidence will he or she refer to and why?  How will he do it?  Why will he use these documents instead of others?

    Step 9 – What clever or catchy phrases or terms or words will my opponent use to try to curry favor with the jury?  Will he be dramatic?  Will she be humorous?

    Step 10 – What will my opponent do about issues of credibility?  Will he talk about the defense examiner and try to demonstrate in opening that my client is not truthful or is exaggerating or malingering?  Will he try to imply or infer those things without coming right out and saying it?  How will he do it?  Why will he do it?  Why will she do it at this point in the opening?

    Step 11 – What will she say about my opening statement?  Why?  What good could it possibly do her?

    Step 12 – What will my opponent employ to try to gain an advantage in opening statement?  Will it be an attack on my client’s credibility due to prior claims?  Will it be an attack on credibility due to inconsistent statements given to doctors about neck pain complaints?  Will my opponent say these things in a straightforward and somewhat friendly manner or in a more aggressive and adversarial manner?

    Step 13 -  What will my opponent try to do later in the proceedings with what has been said in the openings?  Why?

    Step 14 – Write or dictate your opponent’s opening statement covering, at a minimum, the following items as part of your outline:

    a.    Opening remarks – first 30 seconds;
    b.    Opponent’s theme of case;
    c.    Opponent’s theory of liability;
    d.    Opponent’s attack on plaintiff’s credibility;
    e.    Opponent’s attack on fault;
    f.    Opponent’s attack on legal causation;
    g.    Opponent’s attack on medical causation;
    h.    Opponent’s attack on damages (going through each one of the elements of damages);
    i.    “The issues” according to my opponent;
    j.    The law upon which my opponent will rely (even though technically not a part of the opening);
    k.    The evidence upon which my opponent will rely, including witnesses’ testimony, documentary evidence;
    l.    Demonstrative aids;
    m.    Catchy phrases or clever sayings;
    n.    The closing – (a) an emotional close to the opening; (b) a very “matter of fact” close to the opening.

    Once you have completed the above O.S.P.A. in a disciplined manner, working intensely to cerebrate on all of these steps, you will indeed be able to predict the most highly likely opening statement that your opponent can or will deliver.  Once you have completed this exercise, it will assist you immensely in developing various parts of your own strategy for those aspects of the trial that will take place both before and after the delivery of your opponent’s opening statement.  Do this with every phase of the case and trial, and you will have a marked advantage or edge.