Beyond Biglaw: Opposition Research For Litigators (Part 2)

Just as it is important to research your opponents, it is just as critical to investigate the “faces” your opponents will present at trial -- their testifying witnesses and experts.

Last week I talked about the importance of “opposition research” as part of a litigator’s case preparation. I focused on why it is important to engage in more than just a cursory look at your opposing counsel’s bio. This week, we can focus on two other case participants worthy of “opposition research”: the other litigant itself, and their testifying experts/witnesses. As with researching opposing counsel, technology has made learning about the opposing party and its witnesses easier than ever. Many of those resources are free to use, and simply require an investment of time from the litigator — to access the information available, and determine how to use what is learned. The ultimate goal? To help frame your dispute and provide additional context for determining how best to approach its resolution.

For example, it is often very important to understand the complete “litigation picture” of the company on the other side of your lawsuit. Do they have many pending cases in the subject area of your lawsuit? If so, that could suggest that such cases are routine for them, and more likely than not the company follows some kind of pattern for dealing with that type of lawsuit. Or does the company not face similar lawsuits very often? Maybe they will be more open to a creative solution as a result. Knowing this information can be very helpful for settlement negotiations, just as understanding the relationship between the company and its outside counsel can be.

For that matter, it is worth looking to see whether or not your opponent has in-house resources dedicated to “your” type of litigation, or whether the case will be overseen by a generalist in-house litigator. If the latter, you should tailor your settlement approach and mediation strategy accordingly, and be prepared to speak more generally about the case issues in dispute. In contrast, a dedicated in-house specialist may be more willing to debate the specifics of your case, and may often need help convincing his or her superiors that a settlement is a good idea for the company. The importance of establishing some kind of rapport with opposing in-house counsel is especially true in “early” settlement negotiations, before opposing counsel is engaged. In short, it is important to know your audience, and to use resources like LinkedIn and Google to learn about your counterparty on the in-house side.

It would be a mistake to focus only on the opposing company’s pending litigations in the subject area of your lawsuit, however, especially because there may be a critical lawsuit in a different area of law that is the real focus of the company’s attention. To that end, it is important to set Google (or other automated) news alerts for the company you are litigating against, and attempt to track developments in any important cases they are involved in.

Likewise, it is important to consider and monitor any public statements the company is making about your case, or whether there are any extant business “situations” such as merger or acquisition rumors that can be distracting the decision makers at the company. It is easier to track this type of information if your opponent is publicly traded, of course. It always makes sense to review recent SEC filings for some context on your opponent’s business regardless. Unlike facts learned through discovery, this information is free and immediately obtainable, so make sure at least one person on the litigation team is tracking it down.

Just as it is important to research your opponent, it is just as critical to investigate the “faces” that your opponents will present at trial — their testifying witnesses and experts. Here again, technology can help turn up information quickly and at no/low cost, once the other side has identified the witnesses. Resist the temptation to save this research for the eve or just prior to the witness’s deposition; better to invest the time earlier in the case when things are less hectic. For company employees, a check of their LinkedIn profiles and a Google search should be enough to give you a good sense of their employment history and current role at the opposing party. Do not rule out the use of a private investigator, particularly if the witness’s credibility will be an important aspect of the case and your preliminary research suggests that there may be fruitful areas of inquiry about their past dealings.

When it comes to testifying experts, there is usually a greater need to investigate their credentials and prior testimony. Ideally, you research and review everything that the expert has published, in part to get a sense for their intellectual predilections and also to see if their current testimony contradicts anything that they have said in the past. In addition to the usual LinkedIn and Google search, it can also make sense to look at how their testimony was treated in any prior cases identified on their CV (ask for that information if not provided when the expert is disclosed), such as if their opinion was ever excluded, for example. If the case budget allows, it can also make sense to try and catch their testimony in open court in another case, or see the expert talk live at an academic or industry conference. At minimum, a YouTube search should be able to turn up some video from prior speaking engagements.

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Ultimately, sophisticated litigators will use every tool at their disposal to gain an edge over their opponents. The tools for performing effective opposition research are widely available and often free to use. Sure, as a senior litigator you can rely on your “intuition” to help divine the best legal strategy for your case. Or as a junior litigator, you are free to “put your head down” and just handle the assignments you are given. The smarter approach — and the one that can actually help you do a better job serving your client — requires the investment of some time to chase down information outside of the pleadings in your case. Study your opponent so that you can give them a better fight.

Earlier: Beyond Biglaw: Opposition Research For Litigators (Part 1)


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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