Trial Strategy v. Trial Tactics: Why Lawyers Confuse Them and What it Costs You [Ep 158]
Are you confident in knowing the difference between trial strategy and trial tactics?
Because ultimately the question is, does your jury understand what you’re doing?
Today, we’re looking at how to identify a clear strategy as the overarching theme that guides the trial, followed by the tactics to achieve that strategy.
There’s a risk of confusing the two, including wasted time and causing confusion for jurors. The best strategies combine preparation and flexibility when you’re in the courtroom.
And remember, focus groups can test strategies early in the trial preparation process, showing you where to refine those strategies early.
In this episode:
- Confusing strategy and tactics can lead to juror confusion.
- Tactics should be flexible and adaptable during trial.
- Jurors expect consistency in case presentation.
- Wasting time on tactics without a clear theme can cost cases.
- Focus groups can help test and refine trial strategies early.
You can also watch this episode on my YouTube Channel:
Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:
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Episode Transcript
Welcome to Trial Lawyer Prep, where you learn how to better connect with clients and juries, gather up strategies to be persuasive, and how to use focus groups along the way. I’m your host, Elizabeth Larrick. In this episode, we’re going to talk about trial strategy versus trial tactics and how this can often get confused. So let’s straighten it out so that you can be on the right path.
Here’s the thing, trial lawyers mix up often and frequently, and it’s not really our fault. We’re constantly bombarded with new CLEs, new tactics, a new book, and here’s the thing. We get these things mixed up because there are lots of new fangled tactics that are thrown out often at new CLEs or away somebody did their trial. We try to pick all these things up.
and put them together, which can cause some disorganization of our presentation. And that’s how we can end up losing cases. I’ve seen it in focus groups, I’ve seen it in the courtroom. And I can immediately tell when people are throwing any kind of tactic against the wall without an overarching strategy. So it gets backwards. And of course it confuses your audience, whether that’s a jury or a judge.
So today we’re gonna talk about the differences between trial strategy and trial tactics. Not just what they are, because I think most of us understand what they are, but when you need them, how they work together, and what happens when you get them backwards. I promise you your focus groups will reveal confusion faster than anything else, but you may be missing that this is a tadic
versus strategy problem versus other kind of problems with confusion. So we’ll talk about that as well. So let’s dive in to the very first point, which is strategy sets direction and tactics executed. Tactics gets you there. So the simplest way I’ve found to understand or make clear
Elizabeth Larrick (02:16.898)
what trial strategy is versus tactics is I like to think of strategy as your destination. Strategy is our 30,000 foot view of where we need to get. And then your tactics are the very specific little pieces that get you there, right? So the little jumps here and there that can ultimately get you to your overarching destination. So again, strategy is your
big picture, our overarching theme, right? Our story that we are trying to tell, our two to three very critical points that the jury needs to come down on our side in order to get the V. But tactics are really about that specific cross-exam question, right? The metaphors that you’re using in opening statement, the very specific visual aids, and even down to the colors that you’re using, right? Those are tactics.
So let’s talk about a very common trial strategy that I hear, but is also very challenging to actually prove, which is part of the thing. If you’re gonna choose the strategy of corporate greed, right? Profits over people, profits over safety. That’s a total strategy and this is your destination, right? This is where you want the jury to be ending up and thinking. However, it’s our tactics that get us there to be able to
So again, thinking through our corporate documents, our discussions you may have in deposition, right? And then how you’re putting that together for visuals, how you’re putting that together for cross exam, what’s the order of witnesses that gets you to that ultimate destination of corporate greed, profits over safety. Your strategy is really kind of an overarching why. Now I have seen,
organization tactics that are helpful for memory, that are helpful for getting people ultimately to the jury to the verdict that you want. If we’re thinking about those kinds of things, that’s like when we’re having an organizational way, like the ABCs or one, two, threes presentation that goes through in a way where your memory is going to pick it up.
Elizabeth Larrick (04:41.72)
Those are very helpful things, but those can also end up just being tactics for just throwing several different things and not, again, having this overarching strategy. Let me give you an example. So if your trial strategy is to show the jury, the company, the defendant knew about the danger but did nothing, right? That’s our overarching strategy. Now we’re gonna look at our tactics. So.
who’s gonna be our first witness? Well, that would be a company, corporate representative, or maybe it’s the safety director. And then it’s the very specific documents that you’re going to use in the order of those documents. Again, the order of cross exam, the style, the questions of cross exam. Each of those tactics is gonna serve your strategy. And so here’s the thing, you can have a lot of tactics without strategy,
and it’s going to leave jurors not putting the whole thing together. Many times we try to lead the horse to water and hopefully they’ll drink, but you’ve got to actually put it all together for them with our trial strategy. So I’ve definitely seen focus groups where there are lots of great tactics with, we’ve got opening statements and maybe some videos of cross-exam, but without
the full direction of you giving that strategy, then generally jurors are pretty well lost. So we wanna make sure that we had these two things together. So let’s talk about then point number two, which is when do we think about these things and when do we start planning for them? Now, most of the time we wanna be thinking about strategy from the very beginning, even with our basic bone facts.
we can be thinking about our strategy because most of the time our tactics can’t really be formulated until we’re getting into that trial prep phase. So our strategy comes early thinking in discovery so that we know the documents that we’re aiming for to prove that they put safety over people. We’re looking for those documents that show that they
Elizabeth Larrick (07:05.154)
chose to ignore the danger or made a different decision, maybe that was cheaper. Those are the things we wanna be looking and thinking about discovery, our depositions, questions. Those are things that are really gonna feed into our overall strategy. And a great thing you can do is focus group early to see if your working strategy is working. So, and we talk about this often on the podcast.
but using focus groups early to make sure that we’re making good strategic choices. Don’t forget, that is something that I can help you with. If you are curious about how to test your strategy early in a case, you can book a free call with me. The link will be in the show notes. What we want to be doing in these early focus groups is just making sure the theme is resonating, right? Or a lot of times what I work with lawyers on is
This is my theme, I feel really good about it, but what is it missing? And when we do focus groups early enough and you get the feedback back from focus groups, you can actually go get it, right? Maybe it’s more documents, maybe it’s another witness. Sometimes it’s an expert, not always, most of the time they would rather see a document or a different witness versus an expert, but sometimes we have a lack of education.
and you need that education to make your theme work. So always be keeping that in mind if you’re missing an education piece there. So then after you do your focus groups, then you can really look at what worked, what didn’t work, what fell flat, how do we unconfuse people about this? And of course your tactics will come later because once you’ve made it through discovery, you’ve made it through that final mediation, now you have a good grasp on all your evidence.
You know what your theme is, so now it’s about how do you pick the best tactics to put that theme in, but also knowing tactics can change in trial. Witnesses who don’t cooperate, right, how do you then use a different tactic to get what you need to meet that theme? And that’s why tactics are flexible, they’re adaptive, there are many different ones, like I talked about, there’s lots of different ideas. You can do the David Ball opening, can do Sardegna-Lomade opening, right?
Elizabeth Larrick (09:23.04)
Some people think the same thing. My point is we hear a lot about tactics. There are lots to choose from, but we need to choose the right ones to meet our trial strategy. Okay, let’s move into our last point here, which is what can it cost you when you confuse the two? Or like we talked about earlier, you do it backwards. You think all about the tactics and you come up with that theme a little later.
So we talked about this just very briefly, which is you can really waste a lot of time and energy and effort on tactics and the jury never get the overarching theme. And then they’re just kind of lost. They may let you score a couple points here and there, but ultimately you’re not gonna win the game and that’s what we need. We need to win the game. So.
you can end up doing a lot of wasted time and focus groups. This is where when folks come to me and they say, well, we’re just, we need to test everything, right? So then they’re like, we want a six hour in-person focus group. And we can totally do that. But a lot of times until you skinny things down and you simplify it and you get it down to these three key points with this six key documents, all right, let’s test that. And that’s why
in almost all of my focus groups, we have extensive planning because while testing everything you maybe think is helpful, not everything comes down to how jurors make their decision, right? They can’t take in everything. It’s almost impossible for our brains. So we wanna make sure we narrow it down to those few things so that you can really have feedback and analysis on those one or two, three key points and then you know,
they stay in or they stay out. Now I can move to the next thing versus thinking, it’s all 30 things. Well, generally not. So we don’t want to waste your time in those focus groups. The other thing that can happen is, again, we talked about inconsistent case presentation. I see this sometimes, unfortunately, where we have teams of lawyers trying cases and they’re not on the same theme. And so they’re using different tactics that can somewhat
Elizabeth Larrick (11:44.642)
be a little out of alignment for jurors. The best way I’ve heard this put is from one of my mentors, Don Keenan, who would talk about doing a cross exam that’s like the McCulloch chainsaw where you just like, you just ripping that person up or it’s the paper cuts, right? So when you have a tactic of you’re just gonna rip up this person and just tear them down all the pieces and then you have somebody else that you’re doing paper cuts,
it’s a little bit out of alignment because jurors begin to expect certain things out of the lawyers when they watch it. And when things come a little bit out of sorts, it doesn’t match their expectation like, you know, it actually caused a little bit of discombobulation in their brains. You may think Elizabeth, people are humans, we are more complicated than that. We are really not. mean, at grand scheme of things, our brains like things simple. We’ve talked about that here.
And so when we do these strategies, these tactics, and we’re a little out of pace, it can be very confusing, even if it’s just that simple of a difference in cross-examination. So we wanna have consistent case presentation. Yes, of course we wanna have consistent case presentation for our strategy, but also for the jurors and the thing of what they’re expecting out of you, what they’ve seen, what they expect, okay? We don’t wanna cause people, whoa, hold on a second, right?
We wanna be meeting their expectation that we’ve set an opening which is, I’m gonna teach you, look at me, I’m gonna tell you the truth and the facts and follow me, I’m gonna tell you what’s right. You make your decision about those guys over there on that other table. All right, so we can totally get these things wrong and that is of course the real danger. If you’re just executing tactics without understanding your underlying strategy, things may fall apart and it’s hard then to put it back together.
So if witness doesn’t come across well or a piece of evidence gets excluded or the judge rules against you on something, you may be stuck. And because you’re relying on a tactic rather than your overarching strategy, you can get flustered, not know what to do. And that’s definitely not what we want to happen in the courtroom. We want you to be very clear on your trial strategy and then have tactics that you can adjust on the fly. This is where when I work with lawyers getting ready for trial,
Elizabeth Larrick (14:05.26)
we have a witness, we have plan A, B, and C, okay? Because I want you to be prepared, no matter which way they go, right? You are very comfortable, you’re calm, you have a plan for that versus making your brain come up with that plan on the fly. Because that’s what happens in the courtroom. Bullets are flying, you gotta have a couple of different tactics so to make sure you’re always gonna get your theme across. All right, so let’s do a quick,
little recap here, which would be we’ve talked about strategy is your destination and tactics are the way that you get there. Together is how we win. So we always want your trial strategy to be started early and in our discovery phase so that we can be building things along the way. Our tactics come in a little bit later when we are getting ready for trial and we’re having
Several different tactics to meet our strategy and also have a coherent presentation throughout the way. If you confuse these things and you’re just going for tactics, you’re gonna confuse your jury. They may give you a couple points, but ultimately, again, they’re not gonna give you that verdict at the end of the day. Talked about how we can use focus groups to test those things so that you know which way you’re going. And if you’re preparing for trial right now, you want to sit down and say, okay,
Number one, what is my strategy? What is my overarching theme? And then underneath that, what are the tactics I know that can get me there? All right, thank you so much for listening to Trial Lawyer Prep. Until next time, keep prepping to win.