Litigation strategy is the process by which counsel for one party to a lawsuit intends to integrate their actions with anticipated events and reactions to achieve the overarching goal of the litigation. The strategic goal may be the verdict, or the damages or sentence awarded in the case. Alternatively, in the case of impact litigation (also known as strategic litigation) the goal may be more far-reaching, such as setting legal precedent, affecting consumer-safety standards, or reshaping the public's perception of a societal issue.[1] Broader goals and more challenging cases require a strategist with a greater understanding of, and facility with, the tools of litigation strategy.
Attorneys who apply advanced strategic concepts (such as Maneuver and the Boyd Loop), which are not taught in most law schools, may gain a decisive advantage over attorneys who are unfamiliar with the skill set and who, because of their unfamiliarity, can be unwittingly maneuvered into disadvantageous actions. The resulting imbalance has led to academic criticism of the use of advanced strategic techniques. For instance, Hugh Selby of Australian National University's College of Law has been particularly critical of its use by prosecutors, who already wield the massive power of the state against often poorly resourced defendants.[2] The counterargument is that strategy can correct already-existing imbalances in the system, allowing a sole or two-attorney law firm with an indigent client to level the playing field against a large law firm with a wealthy corporate client, and allowing attorneys with little trial experience to effectively try cases against vastly more experienced opposing counsel.[3]
^Dreier, A.S., Strategy, Planning & Litigating to Win, pp. 54–5
^Selby-Dreier Debate on Advocacy Teaching
^See e.g. Id.
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