Reverse Brainstorming in Everyday Legal Practice by LawCrossing


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Reverse Brainstorming in Everyday Legal Practice

First off, “Reverse Brainstorming” has become management jargon today, but it is a process used over centuries
by the best minds practicing law. Simply put, “reverse brainstorming” is the habit of putting yourself in the shoes
of the other party and thinking out possible courses of actions by an adversary and the outcomes.

The same method is used to prepare and structure                     •       Try to find law and precedents that would allow
the arguments in a brief really, but instead of only                         maximum compensation or penalty and how to
considering what the attorney on the other side                              utilize/neutralize or reduce/enhance their appli-
might say or do, one also has to give the greatest                           cation
consideration to what the bench may say or do                        •       Do not engage in summary rejection of ideas
– clinching arguments are difficult to conceive without                      without investigation
reverse brainstorming.                                               •       Use the insight gained to strengthen and struc-
                                                                             ture your own case
Reverse brainstorming approaches the process of
finding solution to a problem in a ‘reverse’ manner.              Lawyers, good lawyers, usually think in this manner,
Rather than thinking about how to solve the                       but the need to highlight ‘reverse brainstorming’ still
problem, you start with thinking about how to cause               remains because it is rarely ‘seen’ as a distinct tool in
the problem, the different methods that might be                  the arsenal of an attorney, or as a habit to cultivate as
employed, how it can be pulled off successfully, or what          seriously as managers do. Many a time, with growth
could be the outcomes. Thinking in this manner helps              of experience and confidence, attorneys start looking
to reconstruct the mindset of the party committing a              for short cuts and start missing the obvious. They give
violation or infringement of the rights of your client,           up the habits they cultured as students and as young
and can allow you to find chinks in the armor of your             lawyers, and start depending upon the ‘feel’ or instinct.
opponent. Rather than taking a straight approach, you             And it happens because of the acute shortage of time in
put yourself in the shoes of the attorney on the other            the life of an attorney. So, many attorneys who already
side and try to win the case from that perspective in             know well of the method of ‘reverse brainstorming’ skip
your mind by applying law, logic and evidence.                    it to save time or efforts. But they would have fared
                                                                  better if they made ‘reverse brainstorming’ an integral
A guide to use the reverse brainstorming method can               part of their work processes and not on something to
include the following steps                                       call on only when required.

   •     Identify the problems and the laws/rights which          Once you have been through a thorough reverse
         might have been infringed                                brainstorming session, creating the brief for your
   •     Identify possible penal or civil outcomes note           client becomes much easier, more structured, and your
         them down                                                arguments tend to carry the maximum punch. On the
   •     Identify possible laws or stare decisis that might       other hand, if your reverse brainstorming session yields
         aid the cause of the other side                          time and again that your opponent has an easy win
   •     Try to find law and precedents that would help           that is difficult to prevent, then it is better to convey
         you to win the case as the other side                    the same to your client and seek the help of seniors.


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