Litigation Myopia

 

Litigation Myopia  

 

As an attorney goes through the process of discovery and developing the factual support for a case, there is an unfortunate by-product that cannot be avoided.  The avalanche of facts begins to obscure the larger picture of the case themes. This is a natural psychological phenomenon, similar to that blurry eyed feeling that comes from re-writing a draft for the umteenth time, and then trying to proofread it.  

  

Foreground and Background

In litigation, as in life, we are constantly battling our limited abilities to keep the foreground and background in proper perspective.

 

I recently received an email that had a few proofreading "teasers" that make this point well. 

 

1- Find the "C" below..
(Try to do this without using your mouse cursor...)

OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOCOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO   

2- Now find the "6" below..

99999999999999999999999999999999999999999999999
99999999999999999999999999999999999999999999999
99999999999999999999999999999999999999999999999
69999999999999999999999999999999999999999999999
99999999999999999999999999999999999999999999999
99999999999999999999999999999999999999999999999

3 - Now find the "N" below. It's a little more difficult.

MMMMMMMMMMMMMMMMMMMMMMMMMMMMNMM
MMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM
MMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM
MMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM
MMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM   

 

Chunking 

 

When we read, we organize and "chunk" the text by words (and perhaps by larger units of phrases or clauses) rather than sequences of letters.


I cdnuolt blveiee taht I cluod aulaclty uesdnatnrd waht I was rdanieg. The phaonmneal pweor of the hmuan mnid, aoccdrnig to a rscheearch at Cmabrigde Uinervtisy, it dseno't mtaetr in waht oerdr the ltteres in a wrod are, the olny iproamtnt tihng is taht the frsit and lsat ltteer be in the rghit pclae. The rset can be a taotl mses and you can stlil raed it whotuit a pboerlm. This is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe. Azanmig huh? Yaeh and I awlyas tghuhot slpeling was ipmorantt!        

 

 

Painting the Big Picture in Litigation 

 

Jurors typically organize their big picture of your case based on "chunking" the central themes in a dialectical dance with pivotal facts during voir dire and opening statement.  Once this big picture forms, it may quickly become impervious to persuasion.  Jurors, in order  to make the dialectical dance work, are often willing to nullify the applicable law or ignore facts that contradict their big picture.     

 

Of course, this phenomenon may be seen as good or bad, depending on which side "owns" the big picture of the case.   

 

Distilling Your Case 

 

When an attorney researches a case using a focus group, he/she is forced to distill opposing sides of the case into central themes and pivotal facts by necessity. This preparation requires the attorney to communicate to a much different audience than the court, opposing counsel or mediator.  

 

The attorney must find the proper amount of distillation down to themes and supporting facts. There is a Woody Allen joke: "I took the Evelyn Wood speed reading course and read War and Peace last night... It's about Russia."  If you do not paint your case landscape correctly, jurors may see your forest of central themes and pivotal facts as an incoherent blur, or miss or dismiss the trees of supporting facts.

 

After you have worked long and hard on a case, beware of litigation myopia.