For years, defense teams have approached litigation as a reactive exercise: respond to the claim, challenge liability, negotiate within the boundaries set by the plaintiff. But with plaintiffs’ attorneys becoming more coordinated, better funded, and increasingly strategic in how they shape narratives and drive outcomes, a passive approach to the defense is now a liability.
To keep pace, defense teams must set the rules of the game themselves. The following steps outline how defense teams can successfully approach a proactive strategy:
- Start Early or Start Behind
Within the first 120 days of litigation, defense teams must assess the entirety of the case. This forces plaintiffs to contend with a defense that has set its expectations, rather than simply reacting to their demands.
- Define the Narrative Before It Defines You
Plaintiffs often frame cases in ways that appeal to emotion. They position defendants as community threats, exaggerating damages and shifting the focus from facts to fear.
A proactive defense disrupts this strategy. By reframing the case, defense teams can humanize the defendant and emphasize the reasonable actions taken, helping jurors evaluate the case fairly.
- Discipline Wins Negotiations
Plaintiffs frequently use high initial demands to set the tone of the negotiation. Proactive teams avoid this by:
- Making the first offer when possible.
- Basing offers on supportable metrics.
- Avoiding reactive negotiation tactics.
- Build a Team That Operates as One
A well-crafted, proactive defense is the product of a coordinated team.
Claims professionals, defense counsel, and expert witnesses must operate with shared goals and a unified strategy. This alignment ensures that the defense team provides clear and defensible testimony, creates a unified front that projects strength, and deters unwarranted or disproportionate settlements.
By embracing a proactive mindset, defense teams can redefine how cases are resolved, ensuring fair outcomes that resist the pressures of unchecked plaintiff demands.
Learn more about the importance of a proactive defense strategy in Reviving Fairness by John E. Hall, Jr., Esq., available on Amazon.
