The Only Way to Win

• Author: Faith Gay, Joy Odom
• Pages: 26-30

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 26

The Only

Way to Win

FAITH GAY AND JOY ODOM

The authors are with Selendy & Gay PLLC, New York City.

The start of any case—particularly a complex one—can be over-

whelming. You may find yourself dealing with multiple claims

and defenses, hundreds of thousands of documents, dozens of

witnesses, and a complicated set of facts. You will be tempted to

triage—addressing only the emergency on your desk. But working

this way leads to ballooning costs and often results in disaster.

How do you rise above the fray of everyday litigation and turn

your mess of a case into a coherent, winning story for your judge

or jury? Especially in these days of extreme economic pressure,

how do you win your case without blowing your budget? Where

do you begin?

Begin at the End

At the end. From the first moment you begin work on your case,

identify precisely what you need to win summary judgment or

trial, and never, ever take your eyes off the prize. Your client will

have improved confidence and smaller bills, and you will be a

master of the facts and strategy—well positioned to force an early

and favorable resolution.

From the day a case begins, imagine standing in front of a

judge or jury, explaining why the facts and law require a win for

your client. To do that, you will need to be completely conversant

with the facts in your case, understand the applicable law, and

build a record that guarantees success. Never forget that the at-

torney who tells the most compelling story wins. Of course, that

is easier said than done. But with a solid plan that accounts for

your eventual turn at trial, you will be on your way.

Whether you are filing a complaint or answering one, make

the time early on to write down the elements of each claim or de-

fense and confirm who has the burden of proof and the standard

of proof that applies. Once you have a legal framework for your

case, you have a means to organize your facts and build a winning

story. Think critically about what bad facts you have, or which may

develop, and consider now how you will deal with them. Weigh

what importance those facts will have depending on your choice

of jurisdiction or your choice of bench or jury trial. Factor in how

an appellate court will think about the legal issues in your case

and identify all areas where legal issues might be decided in more

than one way so that you can be prepared for all scenarios.

Even if this exercise seems hopelessly difficult or incomplete

at the outset, it will force you to be disciplined about what re-

ally matters to your case. No matter how complex the underlying

problem, whether you win or lose will turn on a handful of key

issues. If you identify those key areas early, you improve your odds

of winning the case.

Once you have a legal framework in place, you must return

to it in real time with unflagging discipline to include the