How Charting a Pathway to Outcome Wins Cases
In close contests, factfinders and mediators want clear direction for making just decisions, especially when both sides have strong evidence and counterpoints. Connect the dots in a logical and persuasive way by navigating decisionmakers through a visual pathway to a victorious outcome. Here are a few examples to spark ideas for your cases.
Correct the misleading path.
When your opponent presents an appealing but overly simplistic pathway to verdict, showcase their erroneous logic by dissecting it point-by-point with logical and reasonable explanations.
In this example, the plaintiff’s personal injury causation theory associated cardiac arrest with ingestion of a defective dietary supplement containing Ephedra. The logic was appealingly simple:
(1) Ephedra is chemically similar to dangerous street drugs like cocaine;
(2) all such drugs create cardiac problems;
(3) the plaintiff took a product containing Ephedra;
(4) the plaintiff suffered cardiac arrest; therefore
(5) the supplement caused his cardiac arrest.
The defendant confronted each point with a plausible counterpoint based on verifiable scientific and epidemiologic evidence:
- not all drugs are the same or have the same physiological effect;
- dosage and risk factors have to be considered when establishing causation;
- the temporal link between ingestion and heart failure was tenuous, and
- the plaintiff’s outcome could be explained by many other reasons.
The case settled shortly before trial.
Chart the responsible pathway.
When your client is accused in hindsight of making the wrong choice because the outcome wasn’t favorable as hoped, establish a reasonable measure for success by graphically demonstrating an alternative visual pathway that performed better than other reasonable options. This creates the negative impression your opponent unfairly cherry-picked an alternate outcome to create a false performance environment.
In this case, some trust beneficiaries accused the trustee of failing to invest their inheritance money wisely because its quarter-century performance fell short of the pathway one popular industry security took. The defense demonstrated how well the trustee performed by flipping the single comparison perspective to a visual pathway measuring performance against enormously popular benchmarks such as the S&P 500, U.S. Treasurys, a medium-risk bond, and an aggressive 10% annual return.
The defense successfully changed the metric of success by altering the comparative outcome pathway from a single speculative choice fraught with risk to a responsible course commensurate with the trustee’s core function. The trustee prevailed.
Chart the pathway that must be taken.
Teach fact finders the step-by-step path to proper resolution with an algorithmic decision tree that visualizes affirmative choices. This visual pathway method excels by demonstrating how the parties negotiated contractual remedies, made proper or improper choices of behavior, performed procedures or not, followed or deviated from instructions, and complied with or ignored warnings. The universal takeaway is the parties either exercised good judgment or they didn’t.
For this case, the defendant school district contracted with the plaintiff solar power provider to build and operate a leased multi-campus solar power system in exchange for predictable future reduced electricity costs. Unfortunately, the project was delayed several months due to several complications, including a closed campus.
After the district superintendent either grew frustrated because of the delay (his public reason) or the plaintiff refused board members’ requests for kickbacks (plaintiff’s allegation), the district voted abruptly to lock plaintiff out and unilaterally terminate the contract. In violation of the contract, the school board never allowed plaintiff to cure the alleged default.
The plaintiff sued the district for breach of contract because it failed to follow the proper termination protocol. In trial, after the jury learned the superintendent admitted in deposition to demanding kickbacks, the plaintiff was awarded $12 million in damages. As a goodwill gesture, the plaintiff offered to forgive the award if the district renewed the contract and the project was completed. The district agreed and the case settled amicably.
Reveal the pathway not taken.
When professional behavior violates an expected standard, convince your opponent to settle by graphically demonstrating an alternate pathway of proper behavior and acceptable outcome.
For this legal malpractice case, the plaintiff restaurant chain violated California Proposition 65 relating to lead in painted labels on tens of thousands of beverage bottles sold in all of its stores. The potential penalties were enormous—over 100 million dollars—but the plaintiff was offered a one-time opportunity to settle all violations for $37,500.
The plaintiff asked the defendant outside counsel for guidance. The law firm investigated one of 19 stores, one of 13 brands, and one of 44 flavors before advising the plaintiff not to pay the fine. The plaintiff followed counsel’s advice.
The company was later cited for multiple violations and eventually settled for $1.1 million in penalties. It sued the defendant for procrastination, failing to conduct a timely and adequate investigation of its potential liability, and giving incorrect legal advice.
In a one-day mediation, plaintiff’s counsel presented a comprehensive story about the defendant’s faulty work, including a systematic explanation how the defendant should have conducted a proper investigation. At each step, counsel demonstrated the proper pathwaay and the action actually taken by the defendant. He concluded his argument comparing the two outcomes with stacks of hundred-dollar bills. The case was settled for a $750,000 payment to the plaintiff.
Chart the alternate pathway.
When your opponent graphically demonstrates an incomplete, misleading, or incorrect visual pathway to outcome, alter it yourself to demonstrate a different outcome favorable to your client.
In this tobacco personal injury-product liability case, the plaintiff’s addiction expert, who operated a private smoking cessation clinic when not testifying as a professional witness, introduced this colorful non-scientific flow chart (below left). It depicts two converging staggered lines representing “diminishing choice” or the free will to stop smoking, and “increasing dependence” on nicotine spiked with repeated relapses, or failed attempts to quit smoking. Both lines beat a path to a continuous circular “addiction cycle” comprising “daily use” and “physical dependence.” The desired takeaway is once a smoker is trapped by addiction, the cycle is endless.
For the defense, I modified the expert’s path to the addiction cycle by adding a simple offramp leading to a different outcome labeled “millions quit” (upper right). Coincidentally, this was the same language the expert touted to attract customers to his clinics. The jury concluded the smoker—who decided one day to quit and successfully did—was 95% at fault for his injuries and awarded his estate just over $11,000.
Illustrate the pathway to damages.
Damages calculations are formidable when they clearly and decisively demonstrate fair and reasonable compensation. Unfortunately, complex formulas aren’t always easy to translate into comprehensible explanations, especially for math-challenged fact finders.
For mediation of a massive wildfire damages claim on behalf of a botanical farm, an expert calculated the plaintiff’s lost productivity from over a dozen destroyed varietals. The formula comprised plantable acreage and plant counts derived from online photogrammetry applications, harvest yields from exemplar shrubs and trees, and unit values from past sales receipts or active contracts.
While dense tables populated by small illegible numbers wouldn’t cut it, the need to “show the work” was unavoidable so I conceived a user-friendly visual pathway illustrating calculations for each varietal with recognizable images (introduced in previous slides) composed as a flow chart. Illustrative icons or symbols could have been substituted.
In joint session, plaintiff’s counsel presented a PowerPoint tutorial explaining how the data was collected, a sampling from over a dozen calculations, and a damages summary for all affected varietals. This established a defensible baseline for negotiating a settlement much higher than the defendant’s expert recommended. The case settled for millions of dollars more than the defendant’s last offer.
Choose the best pathway.
In my experience, the secret to determining the best pathway to victorious outcome is early collaboration. Allow time for experimentation and evaluation so no milestone is missed, and every variable is properly conceived and resolved. Insert your visual pathway into the summary judgment brief, give it to the mediator before your session, build it in front of the arbitrator, and showcase it in your closing at trial. Influencers and fact finders will appreciate your effort.
Jim Gripp is a pioneering founder of Legal Arts, Inc. He has over forty years-experience as a litigation graphics consultant and private investigator. Email Jim at email@example.com.