In the high-stakes world of business litigation, walking into court without a deep understanding of your opponent’s strategy is like navigating a minefield blindfolded. The consequences can be devastating.
The ancient Chinese general Sun Tzu described this problem thousands of years ago (although he was of course referring to actual battles, not courtroom ones): “If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
There’s a good reason why litigators repeat this quote so much that it’s become a cliché; Sun Tzu was really onto something. Whether you meet your adversary on the field of battle or in a courtroom, you must understand your opponent if you want a better than coin flip chance of prevailing. We’ve already discussed the importance of turning your evidence into a compelling narrative to convince the jury. The opposing party will attempt to do the same thing. If you want to successfully counter your opponent’s case, you must first know what it will be.
Don’t Underestimate Your Opponent
The need to understand the opposing party extends to avoiding a critical error: underestimating them. You may think your opponents are flat wrong. You may think they have an unrealistic expectation of what their claims are worth or how strong their defenses are. You may think they have a poor understanding of the critical facts. There’s a good chance they think the same thing about you and your case. Their lawyers will be looking at the facts that best support their arguments and will attempt to weave those facts and arguments into a narrative. They will try to tell a story to convince the jury they should win. It will be hard for you to undermine that story if you don’t know what it is. No matter how much you think the other side’s position is untenable, you and your attorneys must work hard to figure out what the other side’s best arguments are. What are their very best facts? Who are their strongest witnesses? How will they try to weave all those threads together into a credible story?
Your attorney must not be so over-confident in his own theories that he cannot put himself into the other side’s shoes. Even while acting as your zealous advocate, your lawyer must be able to see the strongest elements favoring your opponent to counter them. If she simply dismisses arguments because she believes they are wrong, or facts because she believes other evidence refutes them, she will not be able to put together the strongest version of the other side’s case to counter it.
Start to Understand Your Adversary at the Outset
Your attorney uses the process of investigation and discovery to build your case. At the same time, she must also be using all the tools at her disposal to elicit from the other side the facts and theories they intend to rely on. Your lawyer will need this information if she is to credibly predict the case they will present to the jury. That means that in discovery and depositions, your attorney cannot be afraid to ask questions that may result in answers helpful to the other side. You would rather hear that evidence in the discovery process than be surprised by it for the first time at trial.
Continue Through Trial Preparation
Learning about your opponent is not a short-term process. It occurs continuously through your trial preparation, including in any mock trial exercises. You will want one of the best lawyers on your team to present the other side’s case. She will need to inhabit the role of a zealous advocate for the other side for the mock trial to be the best possible learning experience for your team. A stronger than expected performance by your “adversary” may lead you to make significant changes to your trial strategy. Similarly, your jury consultant may want to test both sides’ best arguments and facts in front of a mock jury pool to see which ones resonate, improving your ability to persuade your future jurors.
Conclusion
Putting substantial time and effort into learning your opponent inside and out is essential to a strong litigation strategy. It can lead to more well-informed settlement decisions, while also minimizing risk and limiting potential exposure to damages if your case goes to trial. If you are convinced your case needs to go to trial, knowing the strongest facts and arguments on the other side allows you to be confident you and your team will put on the best case possible. You will minimize the other side’s ability to surprise you, and you will have ready counterarguments and facts to respond to their best evidence.
At Keller Anderle Scolnick, we prioritize understanding the nuances of our opponents’ cases, allowing us to vigorously advocate for our clients and achieve top results. Bring us your toughest case. We’ll get the job done.