In the flurry of New Year’s resolutions, people often set themselves on a crash course littered with unattainable goals that do not account for the hours and energy needed to just work, sleep, have any semblance of a personal life, and maintain sanity. It is safe to say attorneys are some of the worst offenders in this regard, as we are often high achievers who live and die by the clock. We scramble to manage overbooked schedules to accommodate court deadlines, client needs, demanding workloads, steady billables, and if we are lucky, our family and friends.
This year I challenge myself and my fellow defense counsel to practice this one realistic work-related New Year’s resolution:
Incorporate defense methods from Bob Tyson’s Amazon Number 1 Bestseller, ‘Nuclear Verdicts, Defending Justice For All’, into your practice. Soak these ideals into your case analysis, make them second nature to your process, and do it at the outset of your cases, long before a trial date is set.
As my piano teacher used to say, the best time to start practicing is yesterday. So, here we go. Step one: Read the book! If you have already read the book, read it again! Now, let us dive into a few of those defense methods and how to apply them early on:
Find Your Story. Be proactive, not reactive. Know the facts. Know your client. Tell their story. Help your client shine through as the reasonable party. Keep your core theme(s) in mind as you seek witness information, work with clients and experts, and develop your case. Your theme will guide your story. Your theme should humanize your client, defuse anger, and embody reasonableness.
Accept Responsibility. No matter the case (even when going for a defense verdict!), discuss accepting responsibility with your client. Ensure they understand the importance and impact that accepting responsibility and communicating this genuinely can and will have in their case. Your client’s reasonableness in this regard will bolster their credibility and may create earlier opportunities for resolution.
Start Your Story Where It Makes Sense for Your Client. The plaintiff will tell their story, but you must not let it dictate yours. Use discovery and depositions to uncover the facts and circumstances that are not favorable to your case. Do not shy away from them. Your story will have peaks and valleys. Embrace these challenges, own them and make them part of your narrative. The best stories speak of hardship, mistakes, and pain, thereby creating opportunity for redemption, understanding, and healing.
Argue Pain and Suffering. Get to know the plaintiff: not just what happened to them, but who they are, where they came from, and where they want to go. Determining pain and suffering is not something to leave until trial. This work starts on day one. What is the plaintiff seeking? Depose the plaintiff and ask them about the impact the incident had on their life. Ask them what their life was like beforehand. Find out what impact money will have on their life. What are their hopes and hobbies? How would they like to spend their time? Once you have this information you can determine and offer a number that speaks to their individual needs and wants. Take charge of the difficult task of assigning a value to pain and suffering. By doing so you become the reasonable party offering compensation and solutions to foster a hopeful future.
Know Your Number and Give Your Number. You don’t have to wait until voir dire or opening statements to give a number. Once you know the value of your case, create opportunities for negotiation and resolution. As you develop your theme, build your story. By doing so, you personalize your client, learn what the plaintiff truly wants, and solidify the rationale and reason for your number.
While these defense methods are straightforward in principle, they are multifaceted and sometimes counterintuitive in practice. It will take practice, creativity and hard work to keep them in mind and to employ them early on in your cases. However, your case development and ability to communicate the soundness of your client’s position through these methods may just be one of the biggest time savers of the year!
Time to Practice! Happy New Year!
 Robert F. Tyson, Jr., Nuclear Verdicts Defending Justice For All (2020).