Planning and strategy errors

March 15, 2024

Steve Schwartz

By Steven H. Schwartz

As published in the March 2024 edition of Missouri Lawyers Weekly

Planning and strategy errors can both be a source of legal malpractice claims. Planning and strategy are both important aspects of legal practice, but they have different purposes. Planning is the process of creating a roadmap to achieve a specific objective. Strategy is the overarching approach that guides decision-making and resource allocation to achieve the most effective outcome. Planning is about the nuts and bolts, short-term goals of legal practice, while strategy is the overall, long-term thought process. Planning focuses on the how, while strategy focuses on the why.

Planning errors may include misapplying the law; failing to file a lawsuit within the statute of limitations; failing to raise a valid defense or objection; failing to preserve your client’s right to a jury, etc.  Strategy errors can include failing to properly investigate a case; choosing the wrong trial strategy or failing to adapt during trial.

Lawyers “practice” law.  Practicing law is not like following directions in a cookbook.  There is not usually one right way to plan or strategize for a case.  Many lawyers can take a different approach but still get the desired result.  Many different legal strategies can be the right answer to the same question.  But lawyers take the facts and the clients as they find them so, quite often, regardless of the legal strategy you choose, the result may not be as desired.  A lawyer can choose a perfect plan but still get a bad outcome.  When the client is unhappy with the result, the client may sue for malpractice, claiming the lawyer should have taken a different path.

When making strategic or planning decisions, it is also critical for the lawyer to consider their opponent’s and the court’s likely response.  In both litigation and physics, for every action there is an equal and opposite reaction.  Failing to consider the opponent’s or the court’s likely response can lead to a serious error in strategy.  Being able to forecast the opponent’s or the court’s likely response comes with experience.  Lawyers who can look at a case objectively are in the best position to predict the likely response to a lawyer’s plan.  Objectivity is a very important trait for a lawyer.

There are methods that lawyers can use to improve their planning and strategic decision-making.  To improve your planning skills:

  • Choose a skill to improve and practice. For example, work on setting goals, prioritizing tasks, estimating time and delegating work.
  • Observe others with strong planning abilities. You can learn from your mentors and your opponents.
  • Set achievable goals for developing planning abilities. For example, set a goal to create a weekly plan for your caseload, and track your progress and performance.

A lawyer can avoid mistakes in strategy by following some of the following best practices:

  • Conduct thorough research and analysis. A lawyer should research the relevant law, facts and precedents and analyze the strengths and weaknesses of the case, the client’s objectives, and the opposing party’s position.
  • Be flexible and adaptable. A lawyer should be prepared to adjust the strategy as the case progresses and new information or developments emerge. A lawyer should also be ready to deal with any contingencies or challenges that may arise, such as unexpected motions, rulings or evidence.
  • Learn from mistakes. A lawyer should acknowledge and accept the mistakes that may occur, and take corrective action to fix them, if possible. A lawyer should also learn from those mistakes and use them as opportunities to improve skills and performance.

Strategy and planning are not skills that lawyers learn in law school.  They are skills that come with experience and on-the-job training.  Lawyers should always be working on improving those skills.

Steven Schwartz is a principal at Brown & James in St. Louis who has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 30 years. He can be reached at sschwartz@bjpc.com. The views expressed in this article are not intended to be taken as legal advice.