A legal dispute involves at least two adversaries. A pure defensive approach only gives the factfinder one option: should I decide for the offense or not? This carries great risk, because if your opponent proves their case at a minimal level, the judge or the jury has no option but to decide in their favor. Developing a plan, crafting a story and making your own request for an outcome creates a second option for the decisionmaker to choose.

Planning is a critical element of legal advice and strategy. An example of this concept comes from criminal defense strategy. In criminal cases in the United States, the government must prove each element of the criminal charge beyond a reasonable doubt. If the government fails to prove just one element, then their case fails and the defendant must be acquitted. The defendant does not carry or share the burden of proof and has no obligation to speak. Even in this lopsided scenario, a successful defense strategy must include careful strategy, planning and storytelling to give the jury a reason to acquit, even though the defense has no legal burden of proof.

Our founding fathers understood this principle. George Washington said, "The best defense is a good offense." Benjamin Franklin said, "By failing to prepare, you are preparing to fail." In any legal dispute you should:

  1. Do a cost-benefit analysis. Planning consumes time and energy, and it can be expensive. The expense must be contrasted against your potential exposure in the event of a loss. 

  2. Make a plan. Gather and organize your evidence to tell your story and show the reality of the situation, in contrast to the other side's false or exaggerated claims. 

  3. Take nothing for granted. Do not assume that the factfinder will see through the other side's allegations. Rather than take an inactive or defensive approach of “Can they prove it?” you can work with a qualified trial lawyer to make a strong case.