If you can win over the judge or jury in their initial impression, you will place the burden on opposing counsel to change their mind. I often refer to this as winning the burden of persuasion. It is important to win the burden of persuasion; because once the judge or jury makes up their mind it is difficult to change their mind. Studies have shown 80% to 90% of jurors make up their mind after opening statement.
MAKING YOUR CASE EARLY TO A JUDGE
After a judge has already made up their mind on a specific issue it can be very difficult to change their mind. In many circumstances in order to change a judge’s mind you may have to convince the judge they were wrong. This can be extremely difficult, because people do not like to admit they were wrong. This is especially true of judges who have been practicing a long time. Even in cases where you can show the judge they were clearly wrong on an issue, they frequently look for other means 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. 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 being put in this situation, and frequently they rather keep litigating the case instead of settling it.
