Climbing the Ladder: Mastering the chess game

By Shermin Kruse
Barack Ferrazzano Kirschbaum & Nagelberg

”Shermin,” he said, ”I want you to figure out how to win this case, develop the strategy, then come and talk to me about it.”

The words that every young attorney wants to hear. The words that say you have reached that time and place in your career when the partners expect you not only to ”run” the cases day-to-day, but also to develop and participate in making strategy-related decisions.

For me, this has been, without doubt, a very exciting new development, one for which I have been properly trained and groomed since my first day at BFKN, and one that will train me for the next phase of my career: partnership.

Nevertheless, the minute I heard those words the room began to fill with the aroma of nervous energy.

Figure out how to win this case? Weren’t we just starting to get into the discovery phase? Wasn’t it too early to figure out how to win the entire case (versus just the immediately pending motions)? And anyway, how does one win cases? What does it even mean to ”win”? Is there an answer? And if so, just exactly how does he expect me, a mere associate, to figure this out?

Though I had always been trained to step back from the smaller, immediate tasks to understand how they fit into the larger puzzle, now I was being asked to take part in figuring out the shape and color of the puzzle itself; like the difference between being a key piece in a chess game and being the player herself.

Even though the air in his office was insisting on thinning itself out and my stomach was stubbornly turning and twisting itself in knots, the partner’s vote of confidence was an energy rush, and I was not about to let him down. So I have, over the years, developed a process for thinking about my cases as the player whose goal is to be able to utter ”checkmate” with as few moves as possible.

I typically begin by mapping out the case in the form of a Venn diagram. I write out all of the issues and put circles around them. I list the legal elements for each issue in its circle, and then jot down the specific facts that must be shown for my client to win on that issue. Using the position and overlap of the circles, I indicate the relationship between the issues — which relate to one another, which are conditions precedent to another, which are more significant, which comprise smaller sub-issues that feed into larger circles, and so on.

I also rate the issues on the basis of their significance to my overall goals. This process permits me to determine which issues are essential to ensuring victory for the client, which then requires me to determine what ”victory” means for that particular client. (A favorable settlement? Victory on a specific counterclaim? Defeating the other party’s case in chief?)

It also enables me to evaluate my case realistically and to make decisions that are strategically aligned not only with my goals, but also my capabilities.

If there is an important issue with proof elements that look impossible to meet, for instance, I try to think of creative (and ethical) solutions to going around it. I brainstorm for other Venn diagram formulations; research the possibility of rendering the issue irrelevant through a motion, or figure out how to strengthen my position on the other issues that may convince the fact-finder to de-emphasize the weaker issues (or result in a more favorable settlement).

Thanks in large part to the training and trust that I receive from my mentors and colleagues; my Venn diagram is now how I approach every new case.

This is not some foolproof formula to winning all cases.

Nevertheless, it, or any other analytical thought process similar to it, is a worthwhile endeavor.

Indeed, from the first moment I began asking the question, ”How do we win?”, I realized that the mere exercise of figuring it out improved the way I approached every aspect of the case.

So I strongly encourage you to engage in this kind of analysis, even if you are very young or just beginning your career. And, as you do, always remain mindful of the fact that the diagram, your analysis of the case, will and should change quite a lot during the course of the case.

As the facts reveal themselves through discovery, proof elements and requirements narrow through motions that are won or lost, and new issues and possibilities not previously considered begin to present themselves, the entire landscape of the puzzle shifts and molds, and you have to be willing to shift with it.

If you are anything like me, the nervous energy will inspire you, excite you for your cases, make tiresome discovery disputes more bearable, and provide you with a new perspective and more complete understanding of what it really is to litigate.

And frankly, little else is more professionally rewarding than finding yourself saying, with a thoughtful satisfaction and mental smile, ”checkmate!”