Wyzga On Words

Q&A Tuesday: Focus Group Research And Confidentiality Agreements.

Q:     I am a lawyer who wants to run my own focus groups.  What do I need to know about confidentiality?

A:     Three things: (1) Always Secure a Signed Confidentiality Agreement; (2) Pre-Research Orientation; and (3) Who Stays and Who Goes.

Always Secure a Signed Confidentiality Agreement.  The confidentiality agreement assures the participants that we will not use their private information in exchange for their agreement that they will keep secret the confidential information gained during the course of the research.  Typically each participant is asked to read, complete, sign, and submit a written confidentiality agreement prior to being seated for the project.  Do not email the participant a copy of the agreement ahead of time.  Present it to the participant after she has shown you her driver's license to verify who she is and has signed in for the project. 

The agreement should provide for at least the following:

In exchange for financial compensation, the research participant acknowledges and agrees that:

• The participant is being retained to help decide a real lawsuit;
• The participant will participate fully, thoroughly, and respectfully;
• All information received, heard, discussed, and seen during the course of this project is related to the project and is confidential unless and until required by a court of law;
• The participant shall not disclose any information, opinion, or details about the project in any manner or form whatsoever to any person, entity, business, or organization unless and until required by a court of law;
• The participant will be videotaped and/or photographed;
• His or her videotaped participation, comments, photographs, written questionnaires, notes, sketches, and the like generated during the course of the project become the property of the law firm; and
  
• The participant will pay reasonable damages if he or she breaches the agreement.

Pre-Research Orientation.  Always remind the participants of the importance of the confidentiality agreement that they signed and secure one last acknowledgment of their promise. My practice is to read a statement about the need for confidentiality, have the participants raise their right hand if they agree with the statement, and secure that agreement on videotape. This is also a good time to remind them that all notes, papers, and trash will be confiscated after the project. The trash can be returned to the law firm and shredded.

Only Lawyers and Firm Associates Attend the Research.  Many litigation consultants agree that parties and experts do not attend or testify during the research project. There is a lot of gray area about the confidentiality of focus groups with parties and experts in attendance. Many clients are too vested in the outcome or are simply unable to hear strangers discuss their cases. Your job is to listen and observe the proceedings; not hand-hold the fretful client.

Moreover, having the client or experts address the focus group destroys neutrality. Absolute neutrality is critical to receiving predictive and probative information. Typically, if the client appears for the purpose of being evaluated one of two things will happen: You will have folks who play the devil’s advocate and challenge you or, worse, you will have those who want to be your cheerleaders and advocate strongly regardless what the evidence shows. Neither role works and both hurt. You do not want to risk it.  Substitute a clip of the video-taped deposition instead.

 

Samuarai Lawyer And The Book Of Wind.

Patrick Trudell writing as Zen Lawyer Seattle (patrick@ktbllaw.com) posted "Lessons from Musashi - The Book of Wind" on 24 February 2012.  This post was preceded by “Lessons from Musashi-The Book of Water, Lessons from Musashi - The Book of Earth, and Lessons from Musashi - The Book of Fire.

For those of you who followed this blog's posts entitled Samuarai Lawyers (Part 1, Part 2, and Part 3) you know that Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada, commented on the Book of Water post.  Wagner spent a number of years living in Japan and practicing Aikido. 

I asked him for his thoughts on the Book of Wind post.  Why?  Because I am fascinated by the practice of law as between these two lawyers living in adjacent countries.  Things are not so same-same as we might think.  I am curious to know what others think and how they practice.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source.  Wagner's comments follow each excerpt.

"In his Fourth Book, The Book of Wind, Musashi concludes by stressing the traits of a warrior. Applied to the trial lawyer these traits are:

Lack of Pretense. The trial lawyer is without pretense. The trial lawyer is engaged in a career long quest to develop his spirit in the proper manner. Musashi’s, Book of Five Rings (Translated by Stephen Kaufman, Hanish 10th Dan) (1994) at 83-84.  His commitment is to his cause rather than to himself. The trial lawyer “does not go around telling everyone he is a great [trial lawyer]. He permits his actions to govern others’ responses.” Id. at 92."

Lack of pretense -- I agree.  Lawyers should not be pretentious. 

"Study Others-Be Yourself. Musashi teaches the importance of understanding the “reasons and philosophies of other systems” to benefit from our own. “Without comparison you have no reference point with which to judge for yourself and decide how to properly develop your own self.” Id. at 84. We should study other trial masters to reinforce our understanding of ourself. In this way we constantly reevaluate ourself.  Remember though to be yourself. When we change our methodology because of others we lose ourself. “Eventually you are going to have to come back to your natural state. So why leave it in the first place?” Id. at 96."

Study others and be yourself -- I agree.  It is especially important to study witnesses and judges so we can understand what they are thinking, despite the masks they may try to erect.  With our own witnesses, we have to realize that no matter what we do interms of preparation, they will "revert to type" after a while.  It is better to go with the "type" from the get go than to fight against it. 

"The Big Picture. Always take the broader view of the situation. “Do not concentrate on details. Keep only one thing in mind: that thing is to beat your enemy. In this way your spirit will continue to grow and you will always be conscious of your surroundings and the situations that appear.” Id. at 95. When we are aware of all possible outcomes we “may not even have to do battle because of superior intelligence based on perception and intuition. It is possible to win a fight without ever having to go into combat.” Id at 93. This occurs when the trial lawyer knows the strengths and weaknesses of her case and is known by the opposition to try her cases."

The big picture -- We get back to my earlier-stated objections to seeing the other lawyer as the enemy.  However, (at least in the context of civil litigation) if we see the conflict between the parties as the enemy, then things improve and we understand the proper way to focus on the situation.  The advice not to focus on details is a recipe for disaster, since that is often where the strengths and weaknesses of a case lie.  Try doing a fraud claim without questioning every detail!  I prefer to say that one should be aware of the details, but do not get bogged down in them so that one is distracted from the main goals.  Try this visual -- the guy running point on a patrol is so concerned with trip wires that he keeps looking at the ground and fails to see the enemy patrol standing in the middle of the trail in front of him!

"Quickness over Speed. Trials are competitions. In any competition rhythm and timing are essential. Musashi recognizes this and stress quickness over speed. “Quickness gets inside of speed and enables you to control the situation… . When you advance, … advance quickly and get immediately to the point. Your speed is dependent on the speed of your [opponent]. … [A]djust yourself  accordingly and do not think in terms of being faster and slower. … [I]f you are constantly moving fast you will have no time to maintain your poise and timing.” Id. at 97. “Always move naturally and calmly… .” Id. at 98. Quickness in trial happens when we focus on the present as in the words and body language of the jury in jury selection and the witness during testimony. Rather then concentrating on prepared notes live in the moment of the trial."

 Quickness over speed -- Again, I agree.  However, we should add to this what one of my sensei said.  "To be fast, go slow."  By this, he meant to take the time to do things perfectly and in a smooth, fluid manner rather than rushing around and doing things that need to be corrected.

 

"Trial Lawyer as Warrior. In today’s legal climate the Jerry Spence metaphor of the trial lawyer as a warrior is apropos. Insurance companies rely on lawyers unwilling to try their cases. Insurance companies base low offers on this reliance. In Musashi’s time it took a warrior to get justice for the weak. In today’s economic climate it takes a lawyer willing to file his case and prosecute it through a jury trial to get justice for the injured. When the insurance company sees such a lawyer they often pay fair value “because they would prefer to fight someone else.”

Comments on insurance lawyers -- As a defence lawyer, I must say that I have almost never been given unreasonable instructions.  If anything, the insurers have been willing to pay what I feel are dubious claims when the cost of defending them is too high.  We do take the personalities of plaintiff counsel into consideration, but I have never backed off of a trial because of who was on the other side.  I have backed off of settlement, though, when counsel is known for advancing untenable positions.  I have worked hard to build a reputation as someone who is always thoroughly prepared and who does not take "wing and a prayer" positions.  If I say or do something, it is because I believe in it.  My offers are not unreasonably low or unreasonably high, since such offers serve only to inflame the situation.  When I encounter counsel who are similarly minded, we have in virtually every case been able to reach a negotiated resolution. 

What do you think?

How do you practice?

What do you want others to know about the way in which you practice?

Punishing Protest: What Is Happening To Confront Non-Violent Civil Disobedience?

   

For those who are considering taking part in non-violent protest, eschew protest, defend protestors, and all the rest of us who live in these United States, if you missed this eye-opening discussion click on the title following to listen to the audio of the one-hour discussion hosted by ORION Magazine:

Punishing Protest: Patrick Shea and Heidi Boghosian Discuss Law and Civil Disobedience

February 23, 2012

Summary: What is the justice system for? Activists from the Occupy movement to climate justice camps are regularly made examples of by courts while bank and oil company executives avoid prosecution for real crimes. During Orion's latest live web event, Patrick Shea, a lawyer who defended climate justice activist Tim DeChristopher (see "What Love Looks Like" in the January/February 2012 issue of Orion), and Heidi Boghosian, director of the National Lawyers Guild, discussed what activists engaging in nonviolent protest can expect from the justice system.

Is Anybody Just The Least Bit Worried About Electronic Stalking? The Supreme Court - But Just A Little.

For $300.00 and a few zip ties you too can track the whereabouts of any vehicle as it comes and goes - and the creepiest part: the driver is unaware.  Maybe it's of use to help monitor teenage drivers or elderly parents who get behind the wheel when it would be best they did not.  However, the wide wide world of electronic stalking by vehicle is up for grabs to anyone who can attach a GPS system to a car.

Erik Eckhom reporting for the NYTimes is featured on the front page above the fold, "GPA Devices Are Being Used to Tarck Cars and Errant Spouses," writes about the latest in technology and the legal system's failure to keep pace.  Excerpt:

"Tens of thousands of Americans are already doing just that, with little oversight, for purposes as seemingly benign as tracking an elderly parent with dementia or a risky teenage driver, or as legally and ethically charged as spying on a spouse or an employee — or for outright criminal stalking.

The advent of Global Positioning System tracking devices has been a boon to law enforcement, making it easier and safer, for example, for agents to link drug dealers to kingpins.

Last Monday, in a decision seen as a first step toward setting boundaries for law enforcement, the Supreme Court held that under the Fourth Amendment of the Constitution, placing a GPS tracker on a vehicle is a search. Police departments around the country say they will be more likely to seek judicial approval before using the devices, if they were not already doing so.

Still, sales of GPS trackers to employers and individuals, for a multitude of largely unregulated uses, are growing fast, raising new questions about privacy and a legal system that has not kept pace with technology. This easy tool for recording a person’s every move is a powerful one that, when misused, amounts to “electronic stalking,” in the words of one private investigator."

When is it legal?  When it is criminal?  Excerpt.

"In the absence of legislation in most states, putting a GPS device on a spouse’s car, or hiring an investigator to do so, is widely considered to be legal if the person placing it shares ownership of the car. But some privacy experts question this standard, and there is little to stop a jealous suitor, or an abusive man trying to prevent a battered woman from escaping, from doing the same.

GPS trackers are increasingly being cited in cases of criminal stalking and civil violations of privacy."

In one retail owner's opinion, selling a GPS is right up there with gun sales.  Excerpt.

“Selling a tracking device is similar to selling a firearm: you don’t ask what they are going to use it for, and what they do with it is entirely out of our control,” said Brad Borst, the owner of Rocky Mountain Tracking in Fort Collins, Colo. His company sells GPS devices online, including a 4-inch-by-2.5-inch model called the Ghost Rider, for $349, that can, with a waterproof box and magnet ($30), be hidden under a vehicle."

Today more than ever one needs to be aware of their surroundings and their privacy rights.

What WON'T You Do For Money?

 

Think of a lighthouse.It stands in one spot on a footprint of shoreline or outside a harbor.  It warns and beckons ships.  It does not beckon all ships; only those that can safely enter the harbor.  It does not run up and down the shoreline signalling all ships to enter that harbor.  It is fixed and with a purpose. 

Why do we (in any profession) chase clients who may not be the best fit for us and our practice? Who do not value our services; who fail to express appreciation for the value our assistance brought to a project; who do not return calls; who do not pay invoices on time or, even worse, try to scramble out from under what they owe.  As Elliott Wilcox reminds us in today's ezine post [ISSN 1559-6044    January 27, 2012    Vol. VIII, Issue 4    Published every Friday.   Sign me up for this ezine!] our time is so precious to us. Be careful what you do with it and for whom you spend it:

 "As we finish the first month of the new year, I wanted to check in and see how you're doing with accomplishing your goals for the year.  Are you on track to try as many cases as you'd hoped?  Are you on track to spend as much time with your family as you want?  Are you on track to learn as many trial skills as you need?

Sometimes, all we need is a little reminder to keep on target.  If it looks like you've fallen off track, make it a point this weekend to invest the time necessary to put you back on the track to success.  Since the Super Bowl isn't until next week, this should be a quiet weekend (unless you'll be joining me in Tampa, Florida, where the pirates will be invading the city for the Gasparilla Festival...  "Aaaaargh!") 

To help keep you on track, here's a little tip that will give you some extra time and peace of mind for the remaining 11 months of the year: One of the most important things you can do as a lawyer (or in any profession) is decide NOT to accept a case or a client.  Just because they have money, it doesn't mean that they're a perfect client for you. 

While you're investing a few hours this weekend working on getting the most out of the rest of the year, make a little list entitled, "Things I WON'T Do For Money."   Here are some examples:

THINGS I WON'T DO FOR MONEY

• I won't accept a case somewhere that requires me to spend two consecutive nights away from my family
  
  
• I won't accept a client who has filed a bar complaint or lawsuit against a previous attorney
  
  
• I won't accept a client who is more than 15 minutes late for our initial meeting and doesn't call to let me know they'll be late

Everyone's list will be different, but you HAVE to have a list.  Otherwise, you'll end up doing ANYTHING for money, and you'll regret it.  This stuff is important.  If you don't have a list, you need to write one.  Don't wait to the weekend -- do it right NOW.

Once you have your list of "Won't's" you'll discover that it's a lot easier to run your practice.  There may be times when money is tight and you're tempted to violate your rules...  Don't.  The money will quickly be gone, and you'll be stuck with a case or a client that you resent.  You'll also be ashamed of yourself for going back on your word.

I hope that helps you keep on track for the next 11 months.  Let's make 2012 your best year yet! 

(BTW - if you need additional help maximizing your time and productivity, my "TIME! (for lawyers)" program is available at www.TimeForLawyers.com )"

A Little Help From Friends.

My parents taught me that we rarely get anywhere alone.  While our successes are often a product of our determination, tenacity, resilience, creativity and the like we would be really rude and self-centered if we failed to acknowledge the help of friends and others along the way. 

Recently I was on a trial team involving a truck wreck.  I needed some help.  I turned to two lawyers.  One I had met in March 2011 and the other almost a decade ago.  Both men immediately took my call.  Both men gave me their time, their resources, tips and techniques.  Both men wrote to inquire how the trial was coming along and what else they could do to help the team.  Neither one asked for a dime.

It's true what they say: You Gotta Have Friends. 

With deep gratitude to trial attorneys Morgan G. Adams and Joseph (Joe) A. Fried for stepping up to the plate to share what they know to benefit strangers somewhere across a crowded country.  Please take a moment to visit their websites, read their blogs and pass it on.  As the story goes, we have multi-million reasons that the right case story told right is not just "storytelling."

Thank you, Morgan and Joe, from down here on the knees of my heart.

Speaking The Truth Is A Revolutionary Act. What Is The Truth?

 

Ahead of me on the freeway is a beater of a car with a bumper sticker: "In a time of universal deceit - telling the truth is a revolutionary act."

I should know the source but I am forced to Google it.  Of course!  George Orwell. 

A slightly different version comes up: “During times of universal deceit, telling the truth becomes a revolutionary act.”  George Orwell

I am curious about the differences between the two quotes.  Language should be neither lax nor sloppy but precise.  On the one hand the quote refers to a singular time of universal deceit; and on the other it refers to many times.  Are we then encouraged to tell the truth once?  As in pick your battles carefully?  Or are we being prepared that there will be multiple occasions of universal deceit for which we must be prepared to speak up?

Looking around it appears that universal deceit is universal time after time.

And then there is the difference between telling the truth "is" versus "becomes" a revolutionary act. What makes telling the truth a revolutionary act?  If it is not a revolutionary act to begin with, how does it become one?  What brings it to life?  What is the genesis?

Finally, what truth is being told?

This sounds like a discussion question from law school when a professor asked, "What is justice?"  Lawyers, among others, often plead for justice for their clients.  Is it the same for both? 

I don't have the answers.  I don't even have all the questions.  I'm just saying that if we are to pay attention to what we want and ask for, what is it we want?  How do we define it?  How will we know it when we see it? 

Back to Orwell who is credited with the quote in his book, Nineteen Eighty-Four.  1984 - it seems quaint. 

What has changed in the several decades?  Is Orwell still relevant?  Is truth?  What about the revolutionary act of telling the truth? 

Paul McMullan, a former deputy features editor at Rupert Murdoch's now-defunct News of the World tabloid, testifying at a judicial inquiry into cell-phone hacking claimed, “Phone hacking is a perfectly acceptable tool, given the sacrifices we make, if all we’re trying to do is get to the truth,” Mr. McMullan said, asking whether “we really want to live in a world where the only people who can do the hacking are MI5 and MI6.”

No, he said, we do not."

According to McMullan, Julian Assange, and a host of other sources telling the truth is not as simple as a bumper sticker might make it appear; although it made me think.  I wonder if everything is fair game now.

College Players Move Concussions Into Court.

For those of you who are football players, football player wannabees, parents of football players, spouses, children and siblings of football players, or lawyers who work on behalf of football players there is a surge afoot: a class-action suit claiming that, “The N.C.A.A. has engaged in a long-established pattern of negligence and inaction with respect to concussions and concussion-related maladies sustained by its student-athletes, all the while profiting immensely from those same student-athletes.”

George Vecsey writing for the NYTimes, "College Players Move Concussions Issue Into the Courtroom," details the story of a lawsuit filed in the United States District Court for the Northern District of Illinois on behalf of recent college football players.  Excerpt.

"The legal action comes after a five-year flurry of awareness of brain injuries in contact sports and follows lawsuits filed this year by dozens of former N.F.L. players who claim the league was negligent in its handling of brain trauma. The issue has moved from science labs to Congress and now to courtrooms, where the financial exposure of the sport’s governing bodies may be tested."

When folks say that lawsuits are frivolous, you may agree and then point them in the direction of those lawsuits that have given us flame-retardant pajamas for children, labor laws that protect miners who toil miles below the surface of the earth we walk on, paint without lead that we can use on children's cribs and playpens, seatbelts that keep us from hurtling through the windshield of our car, clean produce, better agricultural, educational, medical and social practices, and so on.

As Margaret Mead reminded us, "Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever does."

Be Careful What You Say, Where You Say It , and How You Say It.

Federal prosecutors have their legal knickers in a knot over a 79-year-old retired chemistry professor who spends part of his day standing outside a United States Courthouse in Manhattan, holding a "Jury Info" sign and handing out brochures to passers-by.  What could he be fomenting that federal prosecutors would indict him for jury tampering?

Benjamin Weiser writing in the NYTimes, "Brief Details Jury Nullification Against Julian Hecklin," says there are two sides to the story. 

What's "jury nullification"?  Excerpt:

"...jury nullification, the controversial view that if jurors disagree with a law, they may ignore their oaths to follow it and may acquit a defendant who violated it."

On the one hand federal prosecutors believe that Mr. Hecklin has violating the law against jury tampering by handing out brochures on the subject to folks who pass by the courthouse, some of whom might be jurors or prospective jurors.  Here's their argument.  Excerpt.

"But now prosecutors are offering their first detailed explanation for why they charged Mr. Heicklen, arguing in a brief that his “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.”

“His speech is not protected by the First Amendment,” prosecutors wrote.

“No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”"

The defense claims that Mr. Hecklin is exercising his First Amendment rights of free speech.  Excerpt.

"Christopher Dunn, associate legal director of the New York Civil Liberties Union, said: “The government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification. Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”"

 Here's where it gets sticky.  Apparently there were those who saw enough of a threat in Mr. Hecklin and his pamphleting that he was targeted by an undercover.  Excerpt.

"Lawyers assisting him (officially, he is acting as his own lawyer) wrote in a motion to dismiss that prosecutors were seeking “to imprison a man for disseminating a lawful message about a subject in which he has an honest and deeply held belief.”

The lawyers, Sabrina Shroff and Steven M. Statsinger, said the prosecution of Mr. Heicklen would only draw attention to the nullification issue and would “surely convert more to the cause than poor Mr. Heicklen ever could on his own.”

But a prosecutor, Rebecca Mermelstein, wrote in the government brief that Mr. Heicklen’s courthouse appearances, his “Jury Info” sign, his writings, and statements he made to an undercover agent posing as a passer-by showed his “intent to target prospective jurors in particular.”

“I’m not telling you to find anybody not guilty,” she quoted Mr. Heicklen telling the agent in a secretly recorded conversation.

“But,” he added, “if there is a law you think is wrong then you should do that.”"

What do you think?  Old crank with too much time on his hands?  Defender of our freedoms?  What about all the so-called "truths" that are being spewed by the media as election campaigns are ratcheting up to be some of the most base, mean-spirited and misleading on record?  How do we know what is truth and what is fiction?  And all this in the shadow of barricades being erected in Tahir Square - a world away in so many ways.

My position is to let people decide for themselves.  They do anyway.

Q&A Tuesday: What Story Does The Defense Get To Tell?

Q:    I often hear that the only choice the defense has in a case is to shoot holes in the plaintiff's story; that it has no story of its own.  Is this accurate?

A:    Absolutely not!  There are two sides to every story.  And the more sides the more stories.  Let me go back to Moot Court days to remind you. 

Yup, time out of mind my hair was curly and the men in robes behind me were sitting Supreme Court Chief Justices of states such as Idaho, Nevada and Pennsylvania.  I had just won the final Moot Court competition arguing to this august panel.

What's "Moot Court"?

"Moot Court is a simulation of an appellate court proceeding (also known as mock Supreme Court and Supreme Court Simulation).  Moot Court involves teams of student-contestants, clients burdened by a legal problem, briefs and oratory detailing the dimensions of the legal problem before an appellate court. Students argue a hypothetical legal case known as “the competition case.”  To do so, students must research the cases and laws cited in “the competition case.”  Moot court judges ask students questions and grade the students on the basis of their knowledge of the case, their response to questioning, their forensic skills, and their demeanor.  Oral argument lasts 40 minutes (each side gets 20 minutes) and each student is expected to speak for a minimum of 7 minutes.  Judges usually consist of attorneys, law faculty, or, on occasion, members of the judicial branch of government." [California State University, Fulleton]

Ironically, it's not just for law school anymore.  There is an American Collegiate Moot Court Association.  But I digress.

For aspiring lawyers, there is nothing better than taking part in Moot Court compettion if you want to hone your analytical, writing, narrative, and platform skills.  Each of the Moot Court teams get the same set of facts from a lower court trial and decision.  As I recall ours was a product liability case involving a forklift and based on the true case, Barker v. Lull Engineering Company.  You research, write appellate briefs and argue your case as the appellant (applying to the higher court for a reversal of a lower cour decision) or the appellee (the respondent). 

As the competition goes on teams and law students are voted out.  Those left standing continue alone in the competition and have the added burden of switching sides.  You must learn to leave your own story and craft a story for the other side.  By the end there are only two of you.  And you don't know which side you will argue until they open the envelope.

The beauty of Moot Court is that it teaches you there are two sides to each story, to each case, and all you have to do is learn which facts and which arguments support which story.

TIP:    If you were on a Moot Court team in law school, go back and revisit what you did and how you did it.

TIP:    If you were on Law Review or some other extracurricular activity, pay attention to the process of identifying the story you need to tell.

TIP:     Identify your cast of characters remembering that even inanimate objects may count in the cast.

TIP:     One at a time tell the story from the point of view of each character.  I recall a case where the lawyer told the story from the point of view of a cancer that was not timely diagnosed; another where the lawyer told the story from the point of view of a dental bridge that had been fitted in an elderly man's mouth; and a third who told the story from the point of view of a street lamp that saw what really went down on that sidewalk on late summer night.

TIP:    Using the same facts tell the best story you can imagine your opponent will tell; and only then tell your own.  See how they compare and diverge.  What makes them the same and different.

TIP:    And then take the time to rent the movie, Roshomon, one of the best examples of how different points of view reveal different stories with the same set of facts.