litigation strategy
understanding your adversaries
Having a full picture of the motivations, financial realities, familial connections, mental health, past bad actions, and a complete background is key to understanding your adversaries. Whether your target is someone who has attacked and abused you online, attempted to extort money, or destroy your reputation; pursuing someone who has mental health issues requires a different strategy than pursuing someone who is abusing you for political or religious beliefs. Those who are motivated to abuse for financial gain or to gain clout, require a completely different strategy. So understanding the background and motivations of the abusers is important. Does the adversary have a history of this type of abuse? A criminal background? Money to defend themselves or pay a settlement or judgement?
Clients who are the target of a civil or criminal investigation or prosecution also need to understand their position. Are you being pursued by an over zealous DA, for their own political gain? Are you the victim of cancel culture that has resulted in legal action? Are you being targeted by someone hoping that you will pay them to go away? Understanding the complete background and motivations of those who are targeting you is an essential component of creating a battle plan.
Merrell Strategy offers complete, in depth, background checks, financial and asset forensics, and comprehensive online behavior research to complement litigation strategy for clients pursuing legal action and for those who are being pursued.
understanding the playing field
Military strategist, Sun Tzu, famously said, “every battle is won or lost before it is ever fought.”
It is a poor general who goes to war without a deep understanding of both his opponent and the battlefield upon which the campaign will play out. Yet people often embark on a legal campaign without understanding the legal system, the personality and motivations of opposition attorneys, the predilections of the judge, and the expectations of the community.
People frequently launch expensive defamation suits, only to find that defamation, even if it seems clear cut, is difficult to adjudicate, fraught with a misunderstanding of freedom of speech, and answered with complex “anti-SLAPP” challenges that are expensive to defend. There are often much better legal routes to justice that don’t involve defamation including harassment, privacy violations, and even business torts. So understanding the legal system and the best battleground to utilize is key.
Understanding the adversary’s team is also important. Some attorneys rarely go to court and want to settle all their cases. Some attorneys want to use every suit to gain publicity for themselves. Each requires a different strategy. You should be fully cognizant of the realities of your opponent and their legal team.
Judges also have ruling patterns, preferences, and predilections that effect the atmosphere of the court, their attitudes toward legal counsel and their positions, and the ultimate outcome of a case. While you can’t necessarily select a judge, you can often select a venue. But no matter the judge, understanding his/her/their personalities and preferences will help create a legal strategy that plays to those strengths and weaknesses.
Finally, understanding the community and their expectations is important. Many judges and prosecutors are elected to their positions, lawyers want to run for public office, in both cases, the political attitudes, beliefs, and desires of voters can play a significant role in the cases prosecuted, the positions of attorneys, and the ruling of judges. Knowing those attitudes and expectations can impact litigation strategy tremendously.
Whether you are the party pursing someone through the courts or you are the party being pursued, litigation strategy is about creating a narrative that paints you in the best light, defends your position, and ultimately maximizes your chances at a successful outcome. At Merrell Strategy, we consider litigation strategy a battle of three parts; understanding the adversary, understanding the playing field, and controlling the narrative.
controlling the narrative
The media can play an oversized role in litigation, especially in high profile, or controversial cases. Unfortunately, the line between opinion and actual journalism (which is supposed to be an unbiased recitation of fact, without opinion) has been largely blurred and people often can’t tell the difference. Additionally, bloggers and arm-chair detectives muddy the water even further by claiming that they have inside information and promoting their suppositions as fact. This can certainly work against a client who finds themselves on the “wrong side” of a voracious media.
Opposition lawyers and prosecutors can use public opinion against you. Despite the fact that judges are supposed to be unbiased, it is human nature to be otherwise. And jury pools can certainly be influenced by the media and public opinion. But understanding the realities of a client’s current reputation and the public’s feeling about a person, incident, or claim is an important step towards either maintaining good will or turning the tide in favor of a client who is viewed negatively.
At Merrell Strategy, we analyze the current narrative and both the issues that contribute to that narrative and the influencers behind that narrative. If that narrative supports our client, we work closely with the media to provide them information and access to keep those positive vibes flowing. However, it is often the case that a client has a negative reputation, especially in instances of politically or religiously motivated harassment and conspiracy claims or if the adversary has managed to use the media to harm the client. In those instances, our goal is to reeducate the general public, expose the motivations of the adversary, and sway public opinion in favor of our client. We work closely with the traditional media as well as influencers and even bloggers to turn the tide.
We work closely with existing legal teams OR assist in the creation of a legal team to best support our client. This includes background and intel work to inform legal strategy, research as to local or industry beliefs that may affect strategy, and current public opinion and media responses that may need corrected. Additionally, we provide constant media and public opinion monitoring as the case progresses, in order to adjust strategy as needed.
When appropriate, we create content, release information to better illustrate our client’s position, and help clients prepare for interviews or for testimony.