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 the arguments in a brief really, but instead of only considering what the attorney on the other side might say or do, one also has to give the greatest consideration to what the bench may say or do – clinching arguments are difficult to conceive without reverse brainstorming.


Reverse brainstorming approaches the process of finding solution to a problem in a ‘reverse’ manner. Rather than thinking about how to solve the problem, you start with thinking about how to cause the problem, the different methods that might be employed, how it can be pulled off successfully, or what could be the outcomes. Thinking in this manner helps to reconstruct the mindset of the party committing a violation or infringement of the rights of your client, and can allow you to find chinks in the armor of your opponent. Rather than taking a straight approach, you put yourself in the shoes of the attorney on the other side and try to win the case from that perspective in your mind by applying law, logic and evidence.

A guide to use the reverse brainstorming method can include the following steps
 

• Identify the problems and the laws/rights which might have been infringed
• Identify possible penal or civil outcomes note them down
• Identify possible laws or stare decisis that might aid the cause of the other side
• Try to find law and precedents that would help you to win the case as the other side
• Try to find law and precedents that would allow maximum compensation or penalty and how to utilize/neutralize or reduce/enhance their application
• Do not engage in summary rejection of ideas without investigation
• Use the insight gained to strengthen and structure your own case

Lawyers, good lawyers, usually think in this manner, but the need to highlight ‘reverse brainstorming’ still remains because it is rarely ‘seen’ as a distinct tool in the arsenal of an attorney, or as a habit to cultivate as seriously as managers do. Many a time, with growth of experience and confidence, attorneys start looking for short cuts and start missing the obvious. They give up the habits they cultured as students and as young lawyers, and start depending upon the ‘feel’ or instinct. And it happens because of the acute shortage of time in the life of an attorney. So, many attorneys who already know well of the method of ‘reverse brainstorming’ skip it to save time or efforts. But they would have fared better if they made ‘reverse brainstorming’ an integral part of their work processes and not on something to call on only when required.

Once you have been through a thorough reverse brainstorming session, creating the brief for your client becomes much easier, more structured, and your arguments tend to carry the maximum punch. On the other hand, if your reverse brainstorming session yields time and again that your opponent has an easy win that is difficult to prevent, then it is better to convey the same to your client and seek the help of seniors.