Having a grasp on where a case is strong versus weak, vague versus specific, or dependent on settled law versus developing law is the difference between a great attorney and the best attorneys. Every attorney can write persuasively, but not every attorney can properly analyze their case. It’s easy to get caught up in the strengths of your case and overlook the weaknesses, but doing so will be at your own peril. Knowing where you stand, and for more experienced attorneys, where the other side stands, is something that can only come with experience; but overlooking strengths and weaknesses can be the difference in winning and losing.
Knowing Your Role
One of the most important things I learned in law school was a basic theory on my first day of negotiations class: Best Alternative to a Negotiated Agreement (“BATNA”). In a basic example, two people negotiate the sale of a home. Seller wants to sell his home so that he might buy a new home, and Buyer has to buy a home in the area for work. Seller’s BATNA is extremely high in this instance. Seller has no need to sell the house at this moment; he is not moving or unable to pay expenses related to the home. Buyer has a low BATNA as he has to move to the area for work and there are no other homes Buyer can purchase (albeit intentionally for the sake of ease). If Buyer makes too low an offer, or even an offer Seller deems unworthy of his time, Seller has no need to accept Buyer’s offer. Seller in this scenario is in control.
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BATNA can also be utilized in more abstract ways when it comes to litigation; some of the best uses of BATNA go beyond settlement or actual negotiations. Success on singular motions or even singular arguments in a motion, in disputes with opposing counsel, and even when conferring with clients are just a few ways BATNA may be utilized in litigation. While I am not suggesting an adversarial approach to client meetings, making your own determinations to the best alternatives for clients is important.
Litigation is more about the best alternative than it necessarily is to any negotiated agreement. While most lawsuits end in settlement, most lawsuits do not center on settlement until both parties determine that going to trial is not worth the risk. Determining a client’s best alternative is often the most difficult task an attorney must do throughout the course of litigation. It requires the attorney to assess a countless number of circumstances ranging from legal assessments of merits to, unfortunately, a client’s ability to finance litigation and everything in between.
Knowing Your Adversary
Every adversary is different. Knowing your adversary is not a science but an art. Some attorneys are risk-averse, some pacifists (though not many), some care more about billable hours than winning, and there is every other possibility in between. To make matters worse, knowing your adversary is only part of the equation; knowing your adversary’s client should be equally, if not more, important.
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My colleagues and I recently had a matter where we became confident that an adverse client was doing more ultimate decision making than typical. From this, we learned our adversary was taking the case more seriously than a typical case of this type, and so we needed to determine why. This allowed us to infer there was more going on than we were privy to and allowed us to keep our “ears to the ground” to watch for further evidence or confirmation.
Knowing when your adversary over or under–values an argument, claim, or defense necessarily relies on doing your own unbiased analysis of the case (even having a colleague give an opinion on the merits and legal arguments). If you can determine the value an adversary places on a particular argument, claim, or defense, and such a value does not correspond to its true worth, there is likely a way to exploit that knowledge.
Back to BATNA
Knowing the strength of your adversary’s claims is important in any litigation. If your adversary has a strong claim they are not utilizing, there must be a reason. While determining why they are not making a claim will not win you a case, it may put you on a path that will. In the home buying example, Seller knowing Buyer’s position would lead to even more leverage than Seller already had. Similarly, in litigation, knowing what cards your adversary is holding, or is not holding, will give you the upper hand.
Brian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at [email protected].