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Practice Tips: Fighting the defensiveness demon
The Advantage: 12.05: V.2, 3rd edition
“Attack Back!” – It’s usually a person’s first response to an attack. It is how the game is played—an offense and a defense. However, when you are looking to a jury or to the court for a win, simply defending against the opposition’s attacks does not get the job done.
When preparing for trial, it is easy for defensive thinking and strategy to contaminate your efforts. Instead of answering attacks, a sure sign of defensiveness, advance your story and your themes. Put the opposition on defense, or in the position to answer your themes, not the other way around. When confronted with an argument, evidence or theme that is likely to put you on the defensive, stop and think, “How can I reframe the story and replace it with a more effective, proactive and positive approach?”
Here are some suggestions and examples.
First, learn to identify and reframe defensive statements or themes. One way to help you identify them is to ask yourself, “Can this statement be prefaced by the phrase, ‘Yeah, but’”? Saying ,“Yeah, but we didn’t think the problem was that serious” rather than, “In our professional judgment the problem was being fully addressed” is an example of reframing a statement from a defensive to a proactive position. Here’s another example. The phrase, “This accident has never happened before” could quite easily be prefaced with a “Yeah, but.” Instead, advance one of your key themes by reframing the statement to, “The evidence shows that no one could have predicted that his type of accident would have occurred.” “Yeah, buts” are easily perceived as a list of excuses for your own bad conduct.
Identifying and reframing defensive statements or themes are essential in a number of pre-trial and trial aspects. Specifically, if you are spending much of your time and focus defending bad facts and evidence while evaluating your case and going through discovery, you likely have a weak case. If, on the other hand, you see a positive, proactive story coming together, you have a stronger case. The “defensiveness meter” can be a basic gut check on how strong or weak your case is. All cases have both weak and strong arguments; find your story through a clear evaluation of both. Your themes and story should combine the two in such a way that you are not just presenting an answer to the weak, but a complete, compelling story that addresses each point in a complete, non-defensive, manner.
Keep in mind, defendants do not have the corner on defensive thinking. It is common for plaintiffs to describe feeling more like the defendant as their case progresses. Also, plaintiffs can become very defensive in deposition or trial testimony, which undermines their case and their effectiveness as witnesses. Plaintiffs need serious testimony practice in order to help overcome the tendency to answer questions defensively. The same advice applies to defendants.
During witness preparation, it is very common for attorneys to tell witnesses to review their deposition in order to prepare for trial testimony. While a witness should be familiar with his or her deposition testimony, being prepared to defend deposition testimony does not move a witness beyond a defensive position. Depositions, by their very nature, are defensive; opposing counsel focus questions on your areas of weakness, not strength. When preparing witnesses for trial testimony, interview them in depth to discover their best, most persuasive story, which will ideally focus on positive facts and issues beyond the scope of the deposition. The goal is to avoid and reframe defensive responses to trial issues.
Finally, do not undermine all your work at not being defensive by beginning your case with these words: “Ladies and gentlemen of the jury, there are two sides to every story.” Such a statement places you squarely on a defensive path. You cannot be in your strongest position as a defendant if you simply refute the plaintiff’s case point by point. A stronger position is to take a proactive non-defensive approach. Just because a plaintiff goes first, does not mean that their story sets the stage for what is to come. You do not want to be in the position of making your story fit theirs. Begin your opening with a statement like, “Ladies and gentlemen of the jury, let me describe for you exactly what the evidence will show happened throughout these business transactions.”
Remember, as always, the best defense can be a good offense.
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