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The Advantage Blog

  • Theodore O. Prosise Ph.D.


The rapid emergence of COVID-19 has imposed stark exigencies on litigation and trial practice. Many law firm offices have been emptied as staff and employees have been quickly adapting to remote work environments. Many courts have closed down, halting civil jury trials, trial to be rescheduled for still to be decided dates. Here is a useful resource to track and assess the widespread business interruption caused by the Court’s directives to socially distance. Most professionals are looking for a sense of normalcy in an abnormal time. How to remain productive and serve the needs of the client through useful and pragmatic means is a key question. With many typically, urgent demands falling away, we believe there are opportunities for litigation teams to get ahead on other, sometimes neglected, important elements of case management.

Proactive Theme Development

It is clear from the medical experts that the transition from virus containment to virus mitigation to slow down the spread of the novel COVID-19 in the U.S. is a critical step to ameliorating greater impacts to the health and safety of our vulnerable populations. As COVID-19 has ground typical trial preparation to a halt, we have shifted to an even greater emphasis on a proactive approach to case management. Although atypical, we have conducted theme strategy sessions through video conferences. We have done a number of these in the last week and expect it to continue for a few more weeks. Such structured theme work meetings were already a primary emphasis and uniqueness of Tsongas’ approach to trial consulting, but as the social distancing restrictions and guidelines have limited some focus groups and mock trials on the immediate horizon, strategy theme work has increased.

Although it happens frequently in normal times, we find that one of the biggest challenges to conducting case strategy and theme meetings is simply scheduling busy litigation teams for a day or two of focused litigation and trial theme strategy. So often the hectic schedules, taken up by hearings, depositions, briefing deadlines, etc. constrain the available time to collect, sit, and focus the team on this essential component of modern trial practice. Step back and think about the big picture, the language, values, and principles that will eventually drive how courts, arbitrators, and jurors will view the evidence at trial. It is an important task but feels, in regular times, more of a luxury than an essential need. Now is the time to take stock of your case that has been developing, perhaps with a life of its own, over the months, year, or even years. Sit, focus, and assess where the story has gone, where the paths have led, where the story can be directed, perhaps redirected, and how the critical themes can be refined, distilled, and focused to arm and motivate your audience.

It is also a time to get out in front of the case that has just started and will soon be thrust back into the crazy schedule ahead. We just met with one of our long-time clients for a trial strategy theme meeting last week and the response at the close of the meeting was, “We wish we had had the time to do this at the start of the case, but we are glad we had the time now.” Now is the time to carve out some hours and devote productive energy to map out the story that will develop in the months ahead as we counsel, develop your case story early, and then go discover it. The story plan may be altered as the discovery process goes, but looking for the right things that will appeal to a court or jury, asking the right questions, and helping your witnesses from being led astray by opposing counsel in their depositions, will keep your client’s best story on track throughout the hectic schedules that lie ahead.

It is probably unclear how exactly case and trial schedules will happen when the courts resume trial schedules. It is likely to be a mad rush, even as all the other pent-up demand for depositions and briefings compound with what will already be busy schedules. Litigators are about to be very busy, as if they already were not busy enough. So, plan for that now. Focus on efficiency and focus in your case planning and execution, focus the vision and target the messaging, so that the crazy will be managed and manageable.

Assemble your litigation and trial team in small groups or over video and work through your case and cases. Invite your clients, who may be restricted from traveling, to the meeting and all can participate in the creative and collaborative process of case strategy and theme development. Revisit, refine, or develop the plan with all the stakeholders, stacking hands on the audience-based strategy, derived from the robust participation and collaboration of all the stakeholders in the case.

Jury Research (Mock Trials, Focus Groups, Community Attitude Surveys)

Our mock trial and focus group planning continues. Mock trial “fieldings” are based on the particulars of time and location. For some clients, we are rescheduling and pushing fielding dates out a bit. We are negotiating with facilities to waive cancellation fees if there is an imposition or extension of social distancing in the venue. And, although some of the standard focus groups and mock trials in the month or two ahead have been replaced with Community Attitude Surveys and meta-data analysis of past mock trial results by type of litigation, the case strategy, and theme work continues on, more or less the same in terms of its methodology, approach, and utility. For clients who still want to make use of the time for mock jury research or have an upcoming deadline (e.g., mediation), we have developed a remote participant jury research model that we feel is methodologically superior to models employing faceless participants.

Witness Preparation

In-person witness preparation for deposition has quickly moved more to an on-line or video methodology. We have been doing more remote witness preparation over the last several years in order to serve clients across the country, to reduce travel expense time, and to fit into tight schedules. One of our clients recently refused to travel to the East Coast for a deposition, so it was conducted by video. The video preparation served him well for telling the truth well and for handling the odd environment of a video deposition. Deposition by video is likely to spike over the next weeks, if not months. Help your key witnesses be ready for this unique condition. It is not just what they say, but how they say it and how they look (on video) when they say it that will determine their credibility and believability as a witness.

Opening Statements

We have had several clients recently reach out to us to say, “I’m going to take advantage of the time I have to draft an opening for my cases.” Using one of the many video conference applications available, our consultants have been able to view the demonstrative exhibits and documentary call outs of an attorney’s opening statement while they are going through the process of developing the structure and making choices about what to include, what not, and how much time to spend on each issue. In other cases, we have helped refine a more developed opening with performance feedback. All too often, the delivery of the opening takes a back seat, when in reality, shares equal importance with content (for more on that, click here). The many attorneys who typically don’t allocate time appropriately in this regard, can finally do so.

Remaining productive and serving the needs and interests of your clients remains vital. Balancing that with the critical community need is a priority. The show, or in this case the casework, goes on, even as we respect and prioritize the protection of our families, friends, and co-workers’ health and safety. We wish you all the best as we all move through this unique time in our practices and in our communities together.


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