As pro se litigants, we rarely think about litigation strategy when we find ourselves in court. More often, we’re struggling to understand and respond to the other side’s filings. What is this complaint about, you wonder. Or what are the grounds for this motion to dismiss or motion for summary judgment? We stay in a reactive — rather than proactive — place, and we’re always on defense. So how do we go about developing a litigation strategy?
My good friend Wikipedia says litigation strategy is a process for integrating your actions with events and the other side’s reactions to achieve your goal in the litigation. Let’s see if we can unpack that a bit.
First, you must set a litigation goal. How do you want your case to end? Sometimes you’re determined to get a specific judgment from the court. But often you just want the other side to pay, or you yourself don’t want to lose too badly. What does success look like in your case? What is the least you can walk away with and be happy with the outcome? It’s important to know upfront the kind of maneuvering you can do.
Next, analyze any weaknesses on the other side. Is the paperwork on which they depend unclear or full of errors? Does a key witness against you have a credibility problem? Can your opponent prove everything that needs proving?
A South Korean general once taught me that once you’ve found an enemy’s weak spot, it’s just a matter of pounding until it breaks and you win. Is there a weakness on the other side you can pound?
What are your strengths in the case? What resources do you have to fight with? Are there documents or witnesses that can help prove your side of the case? Should you show your hand early or save your evidence for a surprise attack where it counts?
Is time on your side? Can the rules of civil procedure be used to delay or obstruct progress in the case, or to leapfrog over issues you don’t want heard? Certainly one of the benefits of representing yourself is that you have minimal expenses, especially compared to paying that lawyer on the other side. Can you afford to wait it out while running up your opponent’s costs?
These are essential questions for developing a litigation strategy. The most important thing here is that the questions are more important than the answers. The answers will change as you proceed in your litigation, but the questions will order your steps throughout it. It is the questions that drive everything.
Have you had any success with a litigation strategy? What were the questions that drove yours? Share your experience in the comments below.