by Eric Helmy, Managing Partner, Northwest Business Law Group
At the Winter Convention of the American Association for Justice, a gifted trial consultant, Rodney Jew of California’s CDS Strategy Consulting in Napa, gave a fascinating presentation about how attorneys should focus their efforts for trial. Mr. Jew looked to military history, and he pulled it vital lessons on case management.
He told the story of how military commanders sought to protect their carrier-based fighter aircraft during World War II in the Pacific. The US Navy had been losing a significant number of planes to anti-aircraft fire from Japanese ships, as well as air-to-air fire from enemy fighters. In an effort to improve their air crews’ chances of surviving combat and returning safely to the carrier, naval commanders commissioned a study of their returning aircraft’s damage to see where they might best apply reinforcing armor.
The trouble with applying armor to aircraft is that you can only apply so much. Armor is heavy, and heavy aircraft are slower, less maneuverable, more easily shot down, and have a smaller range. So it was vital that the armor be applied only where it would be most likely to save pilots and airplanes.
Initial efforts focused on determining where aircraft were most frequently hit, which corresponded roughly with the relative concentration of bullet and flak damage on returning aircraft. The thinking: apply armor in those areas most frequently hit, and this would improve aircraft survivability.
After much hard work assessing damage concentration on returning aircraft, the powers that be realized they had embraced the wrong approach. They had considered the wrong question. The vital issue was not where returning aircraft were most frequently hit. It was instead: where were the aircraft that were downed hit? Of course, aircraft downed over the Pacific were not readily available for study. So Naval personnel concluded that the lethal shots that downed their aircraft – the “kill shots” according to Mr. Jew – occurred in areas where returning aircraft predominantly did not receive hits. It was the areas least frequently hit in returning aircraft, not those most hit, that required armor.
This story produces key lessons that your lawyer must apply to your case. In a general sense, the key is to be certain one is working smartly before one sets about working hard. Hard work, in and of itself, is not something to be praised. If it does not serve an intelligent purpose, hard work wastes time, energy, and money.
In particular, a big part of working smartly in litigation is identifying the “kill shots” correctly – the achilles heel(s) of your case – and “armoring” against those shots appropriately. If intelligent and effective application of armor is not possible, a good attorney will advise that you cut your losses and guide you to the most effective resolution of your case that’s available under the circumstances.
What is a client’s takeaway here? It’s easy and fun for an attorney to speak to a client about the strengths of her case, and show you an invoice cataloging how “hard” they’re working (gaged only by how many hours they’ve but in). Do not settle for that. Ask your attorney what he or she believes are the weak points of your case, and what can be done about them. If you do not see that your attorney has been thoughtful about identifying them, insist that he work on this and report back to you. If you are still not satisfied, consider changing course. You do not want want your plane armored in the wrong places, or not at all.