Beyond Biglaw: Opposition Research For Litigators (Part 1)

An important part of preparing a case involves learning your opponent, as columnist Gaston Kroub explains.

Litigation is an adversarial process. Good litigators thrive on the competitive aspects of litigation and are driven to defeat the other side. Their desire to win, however, is informed by their client’s goals for the litigation itself. If achieving the client’s goal requires a victory in court, then the litigator will do whatever is necessary to secure that victory; success in that case will usually be easy to measure based on the outcome of the court proceeding. But even when a litigator settles a matter, getting to that result often requires a “victory” over the other side. At minimum, the successful litigator will have convinced the opponent to push aside their natural tendency to fight to the death when cornered.

Ask any litigator whom you respect about the keys to their success. Many of the responses, irrespective of the type of litigation (patent, insurance defense, etc.) that litigator practices, will evoke the importance of preparation. Preparation is key, because most experienced litigators are at minimum comfortable with their “technical” skills; they are comfortable asking effective questions at a deposition, for example. While successful litigators always try to refine their technical skills, they also enjoy a measure of comfort that they can draw on their experience to deal with the inherent unpredictability of litigation. But just because they are comfortable with unpredictability does not mean that they embrace it.

In fact, many successful litigators do whatever they can to reduce unpredictability. For most, exhaustive preparation is the pathway for doing so. As many litigators will attest, an important (but often not taught to younger litigators) part of preparing a case involves learning your opponent. (We can define opponent broadly — anyone whose interests are not aligned with your client’s in a particular case.) In a typical litigation, there at least three distinct entities who fall within the definition of opponent: (1) opposing counsel, (2) the counter-party or parties in the case itself, and (3) testifying experts and other witnesses. In some measure, every successful litigation effort requires some “opposition research” — a phrase popularized by political campaigns, but equally important in the litigation context. Political campaigns are all about defeating an opponent; learning from tactics used by successful political campaigns is therefore quite appropriate for litigators.

In my experience, there is an innate appreciation among litigators for the importance of opposition research. As with many things in the practice of law, however, the sentiment is often expressed with conviction, but acted on in a haphazard manner. I remember as a young associate being asked to “check up” on opposing counsel. I understood why doing so was important, but as with most assignments, I was not given real direction on how to do so. Nor was there a CLE, even in our litigation training program, on how to effectively research opposing counsel in a case. As a Biglaw partner, and especially now as a partner in a boutique, I have learned the importance of combining assignments — especially important ones like opposition research — with at least some instruction of what needs to be done. Doing so goes a long way towards receiving back “usable” work product.

When it comes to researching opposing counsel, just looking at the firm bios of the lawyers on the other side of the case is a starting point rather than an end point. The diligence being conducted on opposing counsel must go much deeper. First off, it is important to understand the depth of the relationship between opposing counsel and the counterparty in the lawsuit. How long has opposing counsel’s firm represented them in this type of litigation? Are they an institutional client of the firm, using the firm’s lawyers for matters that involve multiple practice areas? Or is this a one-off engagement, secured via a successful dog-and-pony show at a beauty contest? This information can be an important guide to your legal strategy — when it comes to settlement, for example. Incentives matter, and firms that have less history with a client may be more motivated to show their litigation chops, in order to demonstrate that the client made the right choice in giving a new firm a chance. How opposing counsel will behave will obviously depend on the case at hand. But knowing about the depth of the relationship between the lawyer and his client can be very helpful.

It is also important to take a close look at opposing counsel’s current and historical workload. With respect to their current cases, it can be helpful to ask just how important “your” case is to the other side’s lawyer. Is it a nuisance case of little value or an important matter for an important client? Likewise, it is important to consider how busy opposing counsel is with other matters — which can impact everything from their response time in your case, to the level of aggressiveness with which they litigate. Additionally, it is important to keep track of their pending motions, both to glean the types of arguments they like to make and how their other cases are being managed. It is also helpful to try and see how their cases have historically resolved themselves. A cursory glance at a firm bio will not give you this information, but a deep dive into dockets will. The extra effort will usually be very worthwhile.

Finally, there is no substitute, if the case budget allows it, for seeing your opponent in a courtroom. Just like people put their best foot forward for a job interview, so do most litigators save their best for court appearances. So seeing an opponent in action can provide a valuable peek at their strengths and weaknesses that no amount of reviewing old briefs can provide. At bottom, the value of opposition research is in providing some context about what to expect from your opponent. Yes, this form of case preparation takes time and can add expense. But all it takes is one piece of information gleaned during preparation to be of value in the case, and the payoff becomes apparent.

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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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