Boutique Law Firms, Litigators, Small Law Firms

Beyond Biglaw: Imperfect Information

Ultimately, it is every lawyer's responsibility to embrace the world of imperfect information, and prepare as best as possible to unearth as much information as they can.

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Beyond BiglawOne of my favorite television shows is FX’s The Americans. The show is set in the early 1980s and centers on a “real” American family in Washington, D.C., where the parents happen to be KGB agents operating undercover. The characters are strong, the acting even stronger, and the differing perspectives between the Americans and Soviets on then-current events are milked for maximum tension and emotional impact. While the whole idea of living in a time when the U.S.S.R. was a real threat is now a foreign one, there are enough period details (such as the white Camaro driven by one of the show’s leads, since my dad had the same car) to provide some personal historical context. These details help the show evoke some of my earliest childhood memories, and provide the show a patina of additional authenticity – for me at least.

While the acting and plots are gripping, what really makes The Americans one of my favorite shows is how the show highlights the challenges of dealing with imperfect information. There is something comforting about watching highly skilled and trained agents, whether they be KGB or FBI, flail about trying to fill in the inevitable gaps in their knowledge about what the other side is doing. We watch the Soviets scramble to get more information about the Star Wars missile defense system for example, while the FBI tries to contain the damage from a mole uncovered in their ranks. Despite the singular purpose and professionalism exhibited by the protagonists on both sides, there are no clear answers — just a bunch of stressed-out people doing their best to serve their respective countries, while hoping that they won’t make a mistake that dooms themselves or their causes.

I am not a spy, but I also feel like a big part of my professional existence involves dealing with imperfect information, especially the adversarial components of my practice. Two aspects in particular consistently seem to generate these challenges. First, when it comes to competing for assignments, whether the competition is with another firm or involves a client who has not yet decided whether they want to move forward with a particular project. It may seem strange to think of a potential client in an adversarial sense, but when the counterparty holds the keys to something you are trying to capture (in this case the billable work), then they are an “adversary” in some measure.

Anyone who has gone through a beauty contest, or dealt with a client deciding whether to authorize a piece of work, knows how frustrating it can be to deal with the imperfect information inherent in the process. The easiest example usually revolves around pricing. How much should we charge? What’s the other firm offering? What’s the bottom-line cost the client can live with? Most of the time, our visibility into these things is murky at best.

Second, it often feels like litigation itself is an exercise in making the best of imperfect information. Sure, we exhaustively research the law and the facts, trying to piece together the winning arguments and tactics. We also mimic spies, seeking intelligence through reviews of the biographies and litigation records of our adversaries or the judges assigned to our cases. Sometimes we even work with personal investigators, as part of our intelligence gathering on witnesses in the case, whether they be fact witnesses or technical experts. The supply of imperfect information in a litigation is inexhaustible — and infuriating at times.

In fact, the more comfortable a litigator is when it comes to dealing with imperfect information, the more likely they are to actually enjoy and succeed at their job. In my experience, the best litigators feed off the adversarial process itself, and delight in shaping the narrative of a case to fit their view of the facts, irrespective of the missing pieces of information they would like to have to complete the picture. When new facts are unearthed, they can be used to buttress the existing theme of the case, or used to radically shift case strategy — depending on their importance. What is demanded from the litigator is the flexibility and judgment to thrive in a world of imperfect information. Failing to adapt to a changing factual picture, or allowing the lack of transparency into the adversary’s mindset to act as a paralyzing agent, can bring disastrous consequences.

Ultimately, it is every lawyer’s responsibility to embrace the world of imperfect information, and prepare as best as possible to unearth as much information as they can. Whether that is through formal or informal discovery, the goal must be to limit the unknown as much as possible. At the same time, successful litigators learn to actually enjoy the emotions generated by the struggle itself, and the challenge of formulating the proper strategy for success through the proverbial fog of war that envelops the litigation battlefield. For a litigator, there are no lows as low as losing a hard-fought case, just as there are no highs as exhilarating as prevailing over a seasoned adversary. The fact that those highs and lows are reached via a road paved with uncertainty serves only to magnify those emotions. We may not be spies, but we know how hard it is to know, much less outwit, our enemy.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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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