Saturday, June 28, 2008

Know Your Opponent

If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

- Sun Tzu

When I get a new case, the first question I want answered is, "Who is opposing counsel?" The answer to that question will shape the strategy I employ, the resources I use and the goals I set. Knowing your opponent is crucial in knowing how to handle your case. Is opposing counsel practicing outside of his field of expertise? Has he lost his last six trials? Or does he have a top flight reputation, an attorney who only accepts cases he believes he can win and win big?

But how do you learn these things? How do you get an accurate picture of whom you’re up against? Consider the following suggestions when sizing up opposing counsel:

Search Martindale Hubble. Use Martindale Hubble online. It’s easy to use and it’s free. It will let you know whether opposing counsel is rated and will provide you some general background information, including what law school he attended, year admitted to the Florida Bar and academic and bar accomplishments. It also provides a link to the attorney’s web page.

Search the attorney’s web page. After visiting Martindale, visit the attorney’s web page. You can learn a lot about a firm just from how its web page looks. Is it professional looking? Does it look like the firm invested some time and money developing its web page? Does the firm even have one?

Look up the attorney’s profile on the web page. Has he published any articles? Are they on the webpage? You may want to print and review them. Has he received any awards? What are the attorney’s practice areas? Does he practice in a specialized area? Is he a jack of all trades?

Search the internet. Do a Google search for the attorney on the internet and see what you find. Perhaps you’ll find one or more of the articles he has written. Perhaps you’ll find an article about him and his practice. Perhaps you’ll come across an article where he is quoted on a given legal issue.

Perform a jury verdict search. Go on Westlaw and perform a search of all of opposing counsel’s jury verdicts. How many cases has he taken to trial? How often has he won and how often has he lost? When he wins, how big does he win, and when loses, how badly does he lose? What types of cases does he take to trial and what types of cases does he win once he gets there?

Do a caselaw search. Do a search on Westlaw of any appellate opinions where opposing counsel wrote a brief, whether for the appellant or the appellee. See if his arguments convinced the appellate court to find in his favor.

Ask friends. What do attorneys whom you know and respect say about opposing counsel? Is he good at what he does? Can he be trusted? Is he aggressive? Overly so? Or is he mild mannered and easy to get along with? Is he the type to conceive and implement long term strategies or does he does he shoot from the hip?

Check with the Florida Bar. Call the Florida Bar and ask if opposing counsel is an attorney in good standing. Has he been suspended or reprimanded? An attorney with a history of ethical problems may prove problematic.

Read. Read legal news columns. Read similar columns in your local business newspapers. Get accustomed to reading what your potential opponents are doing -- whether they have been appointed to a board, given a lecture or recently switched firms. Keep abreast of what attorneys in your community are doing. That attorney you read about today may be on the other side of the "v" tomorrow.

When you first get a case, don’t just research the facts and the law. Research opposing counsel. What you find may be more useful that what you find in the law library.

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