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How to Develop a Winning Litigation Strategy

How to Develop a Winning Litigation Strategy

Michael Flannery

Successful litigation requires more than just a skilled litigator—it requires a winning litigation strategy. Every litigator dreams of stumping the expert witness on cross-examination, making the perfectly-timed objection, or delivering the passionate closing argument that sways a jury. But these are just opportunistic litigation tactics. What makes for a successful litigator—and successful litigation—is a carefully planned and organized litigation strategy based on the details of each case.

Litigation tactics are important but they are not always necessary. A well-prepared litigation or settlement strategy, on the other hand, is critical at every stage of the litigation process. Here are some simple but necessary steps for planning a winning litigation strategy for your client in every case.

1. Prepare, Prepare, Prepare

Having a case settle in your client’s favor does not occur by chance or luck. It requires preparation. Preparation in litigation is not something that begins and ends. It is a continuous tool throughout the litigation process. Every piece of evidence that is discovered and motion that is filed may change the strategy in the case. And every change in strategy requires new preparation. There is never just one strategy to follow. An advanced litigation strategy includes being prepared for any possible outcome, including litigation and settlement.

2. Analyze the Evidence to Identify Key Legal Issues

Clients don’t always have the luxury of pursuing every possible issue that could arise. Pursuing each possible legal issue takes time and costs money. To minimize the cost of litigation for the client and your law firm, one of the most useful strategies a litigator can employ is defining the relevant issues in the case as early in the process as possible.

To do this, you must collect and analyze all the evidence in the case as soon as possible. The evidence dictates the legal issues the court will decide. Most cases rest on just a few legal issues. Understanding the evidence that is available and how it is relevant to the case allows you to spend the limited resources you have on the issues that the court will decide in determining the outcome of the case.

3. Do the Legal Research

In deciding cases, judges want a clear and concise legal basis for deciding a case one way or the other. The litigator who offers the court the simplest and most organized reasoning that supports the court’s holding is usually the one who wins. The only strategy for out-simplifying and out-organizing your opposing counsel is to do comprehensive legal research. It is not enough just to have favorable case law on your side. It must be presented in an organized and easily digestible manner that helps the court support its holding with simple and sound reasoning.

4. Define Success for the Case

Successful litigation does not always mean winning a large jury verdict. Success for one client might mean settling a case early and avoiding expensive litigation. Success for another client might mean deposing expert witnesses to disclose evidence on the record. You must always define what success in each case means and tailor your litigation strategy or settlement strategy accordingly.

5. Use Your Resources

One of the most important litigation resources you can use is your management of the resources you have available. If you are a litigator in a law firm, delegating tasks to members of your litigation team can save you time and save your client money. If you are a sole practitioner, you may need to rely on an independent litigation support staff to assist with legal research or stay organized during trial. If your case involves technical matters beyond your area of expertise, you may need to rely on expert witnesses. Perhaps you need specialized insight on jury selection or could benefit from mock trial presentations. Using such resources takes time and money. How you manage these resources can make the difference in the outcome of your case.

6. Know the Players

The worst thing a litigator can do is “wing it.” Walking into a negotiation without knowing the tendency of your opposing counsel to settle similar cases or coming before a court without knowing the judge’s position on the admissibility of certain types of evidence, for example, can be costly.

Part of a successful litigation or settlement strategy is knowing what—and whom—you are up against. Knowing what cases your judge tends to cite on specific issues is to your advantage. Perhaps litigating in another jurisdiction before another judge would benefit your client. Knowing that your opposing counsel tends to settle particular cases to avoid litigation is helpful information. Taking a little time to know the players in your case is a strategy you can’t afford to omit.

7. Understand Your Options and Their Risks

Ultimately, your duty as a litigator is to help your client obtain the best possible outcome in their case based on their needs and resources. It is important to strategize with your client and involve them in strategic decision-making. You have a professional responsibility to advise your client of the risks involved in pursuing any course of action in the litigation process. This includes the advantages and disadvantages of settling a case or proceeding to trial. Understanding all the options and being honest with your client about the time and expense of pursuing one option over another is part of a winning litigation strategy and your ethical responsibility.

8. Be Agile

Another critical part of planning a successful litigation strategy is always being prepared to change it. The litigation process is filled with surprises, such asnewly discovered evidence, unexpected witnesses, changes in the law, or unforeseen circumstances. Often, having just one strategy is having no strategy at all.

With every twist and turn of the litigation process, you and your client must be prepared to shift gears and change course. You might have to abandon what you thought was the strongest approach and be prepared to strategize in another direction. Ultimately, the winning strategy is often the one that is most flexible. To learn more about litigation, check out these useful resources that can help:

Michael T. Flannery is the Judge George Howard, Jr. Distinguished Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law. He served as Associate Dean for Faculty Development from 2014 to 2016, and Associate Dean for Academic Affairs from 2018 to 2020. He teaches Family Law, Decedents’ Estates and Trusts, The Prudent Investing of Trusts, The Sexual Exploitation of Children, Animal Law, and Sports Law. He served as a Special Judge for the 20th Judicial District of the State of Arkansas between 2008 and 2011. He also serves as a Legislative Expert Liaison for the Arkansas Bar Association’s Legislative Committee on Family Law. He was featured on National Public Radio as an “Agent of Change.” Professor Flannery has published numerous case books and law review articles. His research has been cited by courts throughout the country. He speaks regularly on various panel symposia and is a member of numerous bar associations and legal organizations.

This post was written by a guest blogger. Although this article was thoroughly reviewed by NBI staff, the views, opinions and positions expressed within the post are those of the author alone and do not represent those of NBI. The accuracy, completeness and validity of any statements made within the post are not guaranteed. We accept no liability for any errors, omissions or representations.