A: Of all the impediments that your case faces, what is the one fact, impression, perception, legal reference, jury instruction, word, image, bias, distraction, distortion, missing link and/or unsupported conclusion, element, cause of action, witness testimony or rule of law that could derail the process?
A landmine is worse than a red flag. A landmine is something you have to blow up (before it blows your case out of the water) or sandbag, diffuse or otherwise diminish to lessen its bad effect - but in either case you have to embrace and make each landmine your own.
Step 1: Ask yourself honestly, “What are the 21 ways I can lose this case?” List them out from worst to least or most severe to least severe.
Step 2: Target each landmine and face where you are vulnerable.
Step 3: Establish a rebuttal(s) to each of these 21 landmines to precisely set out with your evidence how you will burn it down, blow it up, or walk the decision-maker around it.
Step 4: Do the same process for the opposition's case. Why? Because "one man gathers what another man spills." [Ken Kesey]
Step 5: Test what you learned in focus group research with the help of a trusted litigation consultant who, unlike you, your colleagues and trial team, has no personal dog in the trial fight. As Frank Lutz reminds us, “It’s not what we say; it’s what they hear.” Only when you test your case with an impartial moderator in front of research participants carefully selected to mimic your venire panel will you learn what in your case coincides with their leanings, biases, expectations, beliefs, world views, experiences, and observations and, more importantly, what does not.