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Fighting An Asymmetrical Battle In Litigation

Over the course of my career, I have worked for both large and smaller law firms. Some people may think that bigger law firms have all the advantages in litigation since they can deploy the most resources and talent to handle a given legal issue. However, smaller firms have many advantages of their own and can adopt strategies to effectively litigate cases against larger law firms. There are a few strategies that lawyers at smaller firms can employ when litigating against larger firms that may have more resources.

Plan

One of the benefits of larger law firms is that they can put numerous lawyers and other legal professionals on a project in order to produce work product on a tight deadline. Smaller law firms may have difficulty producing work product in a short amount of time because smaller law firms usually have fewer attorneys and less bandwidth that can be devoted to legal matters. Of course, there are ways in which that work can be farmed out to other lawyers, but that might not be an option depending on the finances of a case.

However, if small firm lawyers plan, conduct research, and begin writing work product early enough, they can be on an equal, if not far superior, playing field against bigger law firms. For instance, earlier in my career, I believed that I would be on the receiving end of a massive motion to dismiss filed by a large law firm. In order to prepare for the inevitable motion practice, I started beginning my opposition research even before the lawsuit was filed. This also had the added benefit of allowing me to review copious materials related to my causes of action, and I was able to bolster my papers prospectively in order to account for arguments that could be made against my causes of action.

Of course, lawyers cannot predict everything that another attorney will argue in motion practice. In addition, it rarely makes sense to write a facts section or other elements of papers too far in advance, and if a motion is never filed, the work done on opposition research is mostly wasted. However, if the finances of the case permit work to be performed far in advance, it often pays to perform such work, especially since this could offer numerous benefits to the representation.

Attack Procedural Issues

One of the easiest ways to defeat motions is to point out how the motion or other part of the litigation process is procedurally defective. Lawyers at Biglaw firms may not know as much about the procedures of certain jurisdictions, especially state courts, since they do not often engage in the same volume of cases as small-firm lawyers and are often in federal court where bigger cases are usually litigated. Earlier in my career, I remember watching a partner at a large law firm being forced to attend CCP in Brooklyn and being befuddled by the procedures there, even though any street lawyer would have been able to handle the process with ease.

In any event, judges love to decide matters on procedural grounds since they often need to do less work this way, and showing how Biglaw lawyers made procedural mistakes can be a good method of asymmetrical litigation. For instance, I once had to oppose a nasty motion to compel and spoliation motion, and the papers were very well written. However, the jurisdiction required that lawyers submit an affirmation noting how they tried to resolve a matter before seeking judicial intervention, and this was not adequately done in our case. I pointed out to the court that the required affirmation had not been supplied, and this was the basis for denying the motion. In this way, a few paragraphs of argument were able to defeat a motion that was dozens of pages long.

Financial Pressure

In some ways, lawyers at small firms can use the financial pressures of litigation in order to face off against larger law firms. Biglaw firms often charge several times more per hour than smaller firms. Moreover, smaller law firms are far more likely to have alternative fee arrangements with their clients which might eliminate financial burdens from the equation of pursuing strategies in litigation. Of course, in some matters, large clients will pay any cost in order to be successful in litigation, and in such cases, financial issues may not make a large impact on cases.

However, in smaller and medium cases, smaller firms can sometimes play a war of attrition against larger law firms because each motion, deposition, discovery demand, and other aspect of the litigation may cost the client of a large law firm several times more than the client of a smaller law firm.

All told, larger law firms definitely have many advantages in litigation, and there is a reason why many large companies hire large law firms for serious matters. Nevertheless, smaller law firms can still litigate against larger law firms using a variety of asymmetrical litigation tactics which can have benefits to clients of smaller law firms.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].

By Jordan Rothman

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. Before that, he wrote columns for an online magazine named The Muse Collaborative under the pen name Knehmo. He endured the great state of Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected].

By Chris Williams