Build a litigation roadmap to establish the road rules for presenting your case

Rules become the anchors for a mediator or a jury when they interpret your case

Patricia Kuehn
2009 October

To be successful, litigating attorneys must actively guide a decision maker to its conclusion. A persuasive attorney organizes, filters and condenses the case information into a simple case roadmap. The attorney does the challenging mental work for the decision maker regardless of whether it is a mediator, judge or jury. To develop this roadmap, consider the following: the layout – introducing applicable standards, regulations, customs, principles, and common sense; the direction – pointing the decision maker to the meaning of the case; and the destination – including information to warrant the monetary award and verdict.

The layout

In laying out a case roadmap, attorneys should establish the fundamental rules and principles by which the situation is governed. Much of American society is controlled by rules. Written and unwritten codes of conduct are everywhere. Generally, people live and thrive in the presence of rules and feel comfortable with the order they provide.

Introducing a simple usable set of rules provides clarity and conciseness to case data and a framework for the decision maker to remember and to retrieve information. Rick Friedman and Pat Malone memorialized this concept in a book called, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability. They state the purpose of introducing rules is to educate the decision maker about the basic principles in the field that require the dispute be resolved in the plaintiff’s favor.

When presented appropriately, these rules become the anchors by which subsequent information is interpreted and assessed. Anchoring describes the common human tendency to rely heavily or “anchor” on specific information when making decisions. Decision makers then adjust from the anchored information to account for other elements.

How does an attorney decide the layout or what rules to include? They must satisfy four criteria. They must be simple, indisputable, violated and important.

Simple

No matter the principle or rule, it must be simple. When information is complex or confusing, it is difficult to process and remember. Use common language and phrases to help the decision maker. For example: “When a train crew can’t see well, they should slow down.” The rule simplifies multiple standards similar to “When conditions restrict visibility, regulate speed to ensure that crew members can observe …” Envision a personal injury case involving a train crushing an intoxicated pedestrian at night on a railroad bridge. The locomotive is pushing a train car. The pedestrian loses three limbs.

Choose verbs that demonstrate action verses inaction or omission. Humans have the tendency to judge harmful actions as worse, or less moral, than equally harmful omissions. For example: “Railroad must require employees to follow safe practices.”

Each rule should consist of only one basic concept. It is better to have more clearly defined and simple rules, than fewer intricate or complex rules.

Indisputable

A rule must be indisputable by the defendant meaning the defendant would appear callous, if not ridiculous, to dispute it. This is done by framing the proper conduct or conditions as universal truths. Universal truths include generally accepted practices and concepts which are recognized in the industry as true. Additionally, they may be based on common sense or values. In the example, the railroad cannot in all seriousness argue a crew should maintain its speed when they cannot see.

Violated

Include only rules the defendant has violated. It reduces the probability of the decision maker weighing what was done right (rules they satisfied) with what was done wrong (rules they violated). The assessment is whether the defendant followed each of the accepted rules or not.

Draft the rule as a neutral assertion of truth or something that is required. It eliminates argument. By including only rules the defendant has violated, the attorney directs the decision maker to a plaintiff’s verdict. In the example, the crew properly stopped the train after crushing the plaintiff; yet it is not included as a rule.

Important

Not every violated rule must be presented; only the important ones. A rule is important only if it helps a decision maker resolve a verdict question.  Exclude distracting and repetitive information. Designing the rules with the jury instructions and verdict form in mind is crucial.

Some attorneys assume a greater number of violations equal a greater likelihood of a plaintiff’s verdict. In reality, most decision makers form early impressions using their understanding of the situation. Their understanding is derived from existing knowledge or what is established early in the case. Then, they collect facts that support what they already believe. Introducing important rules early gives the decision maker the relevant framework in which to place later details. Other important rules for the example include, “Engineers must know stopping distances,” and “A train’s headlights must illuminate a person 800 feet away.” “Employees must report when people are on or near the tracks” is excluded because the railroad knows people are regularly near this bridge despite this crew’s failure to report it.

Derive inspiration for the rules from anywhere. Rules come from legal sources or company information such as manuals, mission statements or Web sites. They stem from common sense, morals, and values. There is no need to recreate the wheel. Borrow from billboards, newspapers, TV, song lyrics, and even house rules such as, “If you make a mess, you clean it up.” Focus groups provide insight and are helpful in identifying and refining ideas for rules.

The direction

Point the decision maker to the meaning of the story by including values. Values go to the heart of someone’s emotion. They provide meaning to sterile facts and rules and personalize the situation. Evoking a decision maker’s internal value system capitalizes on existing pathways of thinking and increases attentiveness. Values facilitate memory and motivate a decision maker to act. Base rules on values whenever possible.

Examples of defendants’ values include laziness, greed, dominance, selfishness and capitalism. Examples of plaintiffs’ values include determination, self sufficiency, health, security, and family. The primary defendants’ value in the example is “indifference.” The managers repeatedly exhibit a lack of concern for employees and pedestrians. They permit safety violations to get the job done faster.

“Indifference” is also the example’s theme. A theme reflects the central aspects of a case with moral underpinnings that become the foundation upon which the story is built. A theme is comprised of three components: content, context and values. Content includes the facts and the rules of law and evidence. Context includes the fundamental circumstances, situations, and conditions beyond the facts. It includes the emotions of the case. Values bring meaning.

The destination

Attorneys must establish rules and meaning to support both the liability verdict and damages award. Decision makers greatly appreciate recommendations for how to calculate damages and information supporting those recommendations. For example: “If Railroad is responsible, then it must pay money to Plaintiff for his difficulty in performing daily activities with no arms.”

An attorney assists the decision maker by itemizing out the harms and losses to the plaintiff. Decision makers want to know how a plaintiff is hurt, how the plaintiff’s life is impacted, and how the plaintiff is adjusting to his “new normal.” They also seek information to “justify” the money request. What good will the money do; can it provide a better future for the plaintiff or others, or will it force a company to make safer choices? If decision makers perceive hope for the future or other positives, they are more likely to fully compensate the plaintiff.

Conclusion

Persuasive attorneys do the hard work for the decision makers. They lay out the rules of the case. They provide meaning to the case through values to motivate the decision maker. They direct the decision maker to a verdict by offering adequate support for both liability and damages. Creating a simple case roadmap maximizes the likelihood of success.

What are the “rules”?

By Katherine James, MFA, ASTC

This month’s column reminds me of a question from an enthusiastic and dedicated lawyer with five years of experience. She asked, “There are so many people who talk about ‘the rules’ everywhere I go. People say, “Read David Ball’s rules. Read Rick Friedman’s rules. Now you tell me that rules help jurors understand how to make a decision. Are you all talking about the same thing or are you in conflict with one another?”

The short and simple answer, as Patty Kuehn would advise is, “We are all on the same page.” What Patty has outlined here is a clean and simple way of looking at a case incorporating what seem today to be different messages about “the rules.” Actually, all the messages are the same.

Jurors are looking for a simple set of rules that apply to the situation that they’ve been asked to judge. Why? Because they are human beings and human beings love rules. Why? Because rules make life predictable. We like to believe that, if we follow the rules, nothing bad can happen to us. If we don’t follow the rules, that is when bad things happen.

The jurors are looking for this, too. What are the clear, clean and simple rules that the defendant didn’t follow? Since the defendant didn’t follow the rules, the defendant is responsible for the harm that came from not following the rules. Clear, simple, a complete “no brainer” – and ultimately immensely persuasive.

For example: “If the light is red, a driver must stop. If the driver breaks that rule, then the driver is responsible for whatever wreckage, physical and human, that is caused by breaking that rule.”

One plus one equals two. Nothing fancy; nothing out of the ordinary. In fact, if your case is presented as being “out of the ordinary” and one that breaks all the rules, the outcome likely won’t be what you want and your client deserves.

So, yes – the rules are the rules are the rules and we are all talking about the same thing.

Patricia Kuehn Patricia Kuehn

Bio as of October 2009:

Patricia F. Kuehn, J.D., M.A., concentrates her practice in jury behavior research and related consulting services. She holds a Master’s degree in Social Psychology with an emphasis on jury behavior. She uses her knowledge of juror decision making and more than 12 years of litigation experience to advise clients on strategic jury selection, case strategy, case theme development, and courtroom persuasion.

Copyright © 2016 by the author.
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