Winning over the judge or jury early puts the burden on opposing counsel to change their minds. I call this “winning the initial burden of persuasion.” It’s crucial because once people form an initial impression, it is difficult to change their mind. Studies show 80–90% of jurors decide after the opening statement.
MAKING YOUR CASE EARLY TO A JUDGE
After a judge has already made up their mind it can be very difficult to change. Even in cases where you can show the judge they were clearly wrong, they frequently look for other ways to justify their conclusion.
MAKING YOUR CASE EARLY TO OPPOSING COUNSEL
It is also important to you make your case to opposing counsel as early as possible. Cases are often labeled as settlement or litigation cases early on. If opposing counsel labels their case a litigation case, then it could be difficult to change their mind that it is a settlement case. Once an attorney tells their client a specific case is a litigation case they are likely to invest a lot of time and money litigating the case. If the attorney later discovers it is a settlement case, the attorney will have to justify to their client why they spent all this time and money litigating case that is now a settlement case. Attorneys try to avoid having to tell their client they spent a lot of money on a case they should have settled, and sometimes rather keep litigating the case instead of settling it.
