Five Secrets to Gaining Client Trust: #2 Keep Them Informed

This is probably the easiest step outside lawyers can take to gain client trust.  Whether we represent a corporate defendant in a business or employment dispute, or an individual accused of a crime, every kind of client appreciates being kept up to date.  I try to resist the temptation to think that a hearing or filing was too trivial to inform the client.  This is especially important with clients for whom lawsuits are not a normal occurrence.  Unlike litigation veterans, these newbies are not yet numbed to the sturm und drang of a lawsuit, and like to feel involved at every turn.

Also, I find that if I make it a point to keep my client informed of just about everything that goes on, every development, I am far less likely to let something major slip by–say, the filing of a dispositive motion or a settlement overture–without alerting the client.  I’ve found surprises tend to be disfavored.

Unless a case is in front of a judge with some kind of “rocket docket,” there will typically be periods in the life of a case when it gets quiet.  Even when this happens, most clients still like to know you’re not asleep at the wheel.  One way to let your client know you’re still in the game is to drop a note (i.e., email or even a letter) giving them an “update.”  Even if the update is nothing more than a reminder of the next anticipated event in the case, coupled with a brief explanation of its significance, it lets the client know you’re still on the job.  A nice way to raise the goodwill quotient is to record the update as a “no charge.”  Just an idea.

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Five Secrets To Gaining Client Trust: #1 Be Honest

Ok.  Since trust and honesty go hand-in-hand, this seems pretty obvious and not such a “secret,” right?  The problem is, I’m not referring in this post to the “Don’t-Commingle-Client-Funds-With-Your-Own-Money,” or “Don’t-Say-You’re-Licensed-To-Practice-Law-When-You-Were-Recently-Disbarred” brand of honesty.  Anyone who is a prospective or existing client assumes you’re licensed to practice and not going to commingle funds.  It’s not an opportunity to gain trust.

When I speak of honesty as an opportunity to gain trust, I’m referring to the candor that comes into play when lawyers pitch to get a client or to get a case, and the temptation arises to be overly optimistic.  For example, do you ever find yourself making statements like this: “There’s a good chance we’ll win!”  Or, “Don’t worry it won’t cost much.”  Or, “There’s a good chance we’ll win and don’t worry it won’t cost much!”

I’ve been criticized by colleagues because I’m not much of a salesman.  I try not to oversell myself as some kind of miracle-worker, and I don’t oversell a case, even if it’s a good one.  After all, every piece of litigation carries risks for both sides, particularly if it’s ultimately arbitrated or tried.

I’m not much on puffing.  But I do try to provide a candid assessment of the risks, strengths and weaknesses of a case.  I do this at the outset.  And then I try to do it as the case progresses.  I like to reassess at critical junctures.  A juncture can be critical because it represents a strategic turning point; more often, however, the opportunity (or obligation) to reassess arises because we are about to invest heavily in the case.  These junctures are typically: (1) before filing the action, (2) before undertaking discovery, (3) before escalating discovery or initiating depositions, (4) before filing or responding to a dispositive motion, (5) before a mediation or other serious settlement negotiation, or (6) before commencing final trial preparation (when things tend to get really costly!).

I’ll admit that complete honesty about the risks of a case and/or the potential expense has led some prospective clients to look elsewhere.  I have had prospective clients pass after my “pitch” wasn’t as sugar-coated as they hoped, only to have them contact me later after the lawyer they ultimately hired disappointed them.  I have not, however, had a client complain at the end of a case because I didn’t make them aware of risks or candidly discuss potential costs.  This is the kind of honesty I believe builds a client’s trust in his or her lawyer.

Another potentially thorny area comes when clients look to us for immediate answers.  Sometimes, when an honest answer is “I don’t know,” we are tempted instead to punt.  With mixed results.  I prefer, and attempt to make it a practice, to be candid if I don’t immediately know the answer to a question, and promise to find out.  Even if it’s a question to which I feel I should know the answer, I remind myself that we’re all only human, and a delayed but absolutely correct answer is better than a prompt, but incorrect, one.

A final thought: sometimes the challenge in being honest about the risks or expense of a case comes, not from any intend to deceive, but from a failure to be completely honest with ourselves about the “warts” of a case or what it’s going to cost.  We want for the costs to be reasonable and the odds of winning to be strong.  We want it so badly that we lose touch with reality.  But, as counselors of law, part of what we’re hired to provide is a reasoned, objective evaluation of the merits of a position our client plans to take.  We can’t do that if we’re not honest with ourselves.

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On Timing of Contention Interrogatories

It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories.  Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling.  But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here.  In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition.  This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning.

Contention interrogatories provide an excellent roadmap to the proponents case.  If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case.  They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense.  If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.

Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses.  Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification.  Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.

This is not to say that I do not serve any discovery before the deposition.  In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset.  Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition.  This is not always possible, but it’s a worthy goal.  I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net).  Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case.

Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”

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A New Twist On An Old Way To Waive Jury Trial in California

Because my finger is ever tapped to the thumping pulse of civil procedure in our fine state, it only took me slightly over a month to realize there’s a new and improved way to lose your right to a trial by jury.  Still, I’m guessing that this will be news to some, hence the post.

Senate Bill 1021 was apparently signed and has already been made effective in at least some California counties (at least San Francisco and Los Angeles).  This amends Code of Civil Procedure Section 631 to provide that, where the deadline to post jury fees had been 25 days before trial, a party now risks waiving the right to jury trial unless he/she/it posts $150 in nonrefundable fees no later than the initial case management conference (CMC).  If there is no CMC held in a case, the deadline becomes 365 days after the complaint is filed.  For parties entering a suit after these deadlines have passed, the old 25 day before trial rule applies.  Thankfully, Section 631 retains the provision providing a court discretion to grant a jury trial to a party that arguably waived that right though failure to pay.

I can’t pretend to be surprised that the state is looking for new sources of revenue.  Forcing parties to post fees sooner and making the fees nonrefundable is one way.  It’s getting more and more expensive to sue or be sued (assuming you want a jury).  I’m reminded, though, why transactional lawyers are glad to hand off lawsuits to litigators–our practice is so filled with dread-inducing deadlines.

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On Getting Through The Drama of A Lawsuit

You are a CEO reporting to an angry board.  You are a sole proprietor with the future of your business at stake.  Or you are an employee accused of discrimination or harassment, with your job and relationship at home on the line.  Lawsuits are long, drawn out, often dramatic ordeals; they exact a toll on the participants.  What follows are some ideas about how to cope with this drama and stress:

1.  Find a lawyer you trust.  This sounds obvious, but it can take some searching to find the right attorney.  He or she must be competent in your eyes, or your stress level will increase.  Equally important, your lawyer must be able to manage the stress of the suit or, again, your stress level will be worsened.

2.  Trust the lawyer you find.  Once you find the right lawyer, trust him or her.  It is rare that your lawyer will not want and expect you to be truthful with him or her, even if the facts are bad or embarrassing.  Your lawyer is in the best position to help you or your company; arm him or her with the true facts.

3.  Participate in your case.  I have found that individual clients who take an active role in their case experience a feeling of control.  It’s not illusory.  Your lawyer can only work with the tools and materials made available to him or her.  You can do quite a lot, by locating and organizing documents, educating your lawyer about the nuances of your business or the circumstances of the case.

4.  Manage your anger, fear or frustration.  The stress of being the target of a lawsuit is not dissimilar from other traumatic or stressful events.  Experts coach those going through a divorce or enduring a tragedy to use exercise or relaxation techniques, like meditation, to manage the stress.  Think of a lawsuit in the same way.  One caveat:  bear in mind that communications with someone other than a spouse or lawyer about the details of the case can be “discovered” and potentially used against you if you say something damaging.  Consult with your lawyer before speaking in any detail about your case with someone who is not your spouse.

5.  Try not to direct your anger or frustration at your loved ones.  This will only make it worse and potentially cause damage that can be permanent.

6.  Try not to direct your anger at your lawyer.  Don’t kill the messenger.  In most instances, your lawyer is doing the best he or she can to protect your interests.

7.  Brace for the long haul, but know it will come to an end.  The cliché, “this, too, shall pass,” is true.  Every lawsuit will come to an end, and there will be an opportunity for closure and new beginnings.

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When Collecting On A Judgment Can Be A Dish Best Served Cold

 

Imagine spending good money, effort and frustration to obtain a judgment only to realize it will cost even more good money, effort and frustration to collect the judgment.

Sometime back I obtained a judgment on behalf of a client against a “serial” restaurateur.  I say “serial” because, although he was good at partnering with the right chef, choosing a key location and creating a terrific vibe, the restaurant business is about as fickle as it gets.  Inevitably, the chef quits, the location becomes unfashionable and some other joint creates a better vibe.  This was the case with our defendant–let’s call him “Tony.”

As soon as we got our judgment against Tony, I recorded an abstract in every county in California, hired an investigator to profile his assets and set a judgment debtor examination.  The investigator identified a couple of bank accounts, nothing else.  I had to practically hire Jason Bourne to stake out Tony and serve him with the summons for the judgment debtor examination.*  I did the exam (at the end of which I had the judge order Tony to give me the contents of his pockets, $128 in wrinkled bills).  The judge also granted my request to levy Tony’s Omega watch and Vespa scooter.

I then started the form-and-delay-laden process of trying to levy his bank accounts.  Being in the restaurant business, Tony habitually drained his checking account and had no savings.  When I subpoenaed him to bring his bank records to the judgment debtor examination (a practice I HIGHLY recommend), the records revealed that Tony almost constantly maintains a negative balance .  We tried a couple of times just the same, and collected less than nothing on each try.

I sat down and had a heart-to-heart with our client.  Fortunately, it had not been particularly difficult or expensive to obtain the judgment.  Tony had failed to make payments on a promissory note and did not contest the lawsuit, leading to a simple default judgment.  The problem was, it looked like it was going to cost our client a lot to collect.  Tony was not anyone’s “employee,” so garnishing his wages was not an option.  He had “arrangements’ with investors who could loosely be called partners, but no partnership agreements exist, so we could not get a charging order.  A till tap was another option but, again, expensive.  There are ways to get to Tony** but, again, it wasn’t going to be easy or, more importantly, cheap.  So, with the client, we explored a third option: patience.

Time is on our client’s side.  Simple interest on a judgment accrues at a rate of 10%.  Finding an investment with a constant 10% return is challenging.  If Tony was not broke our client might have collected right away.  But, assuming he did not immediately spend the money, could our client find an investment with a 10% return?  Tony might have a bright future.  He does have a knack for creating a hip vibe, which can carry a restaurant pretty far in Los Angeles.  Even if he never kicks ass, though, he might in five years or so get a steady job where he collects a regular paycheck that we can garnish his wages.  If it takes 10 or more years, the client simply needs to renew the judgment.  It’s not immediate and it’s not sexy, but it might just get our client his money back with some decent post-judgment interest.

*Yes, I do occasionally resort to hyperbole.
**Broken kneecaps being one.

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Don’t Be The Third Lawyer For The Same Client On Any Case

A recent post on Legal Practice Pro, “When Substituting In, Beware The Pile Of Crap” warned about a risk faced by any lawyer who substitutes into a case in place of another lawyer: getting sanctioned for the unethical or bad lawyering of the predecessor.  This is surely one of the bigger risks when you take over for someone else.  But there are other things to think about when asked to “sub in,” particularly if there have been more than one lawyer who previously represented this client in the same matter.

I’m thinking in particular of the problem or “unworthy” client.  Anytime you are asked to get involved in a case mid-stream, and there have been a succession of multiple lawyers before you who have either quit or been fired, I’m going to bet it’s the client, not the lawyers, who is the problem.  Clients can be unworthy for a number of reasons: they fail or refuse to pay, or to pay within a reasonable time, they have unrealistic expectations of their lawyer, they ask their lawyer to act unethically, or some combination of these.

There is no question that many clients have legitimate reasons for seeking new counsel.  Maybe the lawyer is unskilled, unethical, spread too thin, or just an ass to work with.  But, if the same client could not make it work with two prior lawyers, and he or she is looking for a third, or a fourth . . . I say an alarm should sound: beware.

If you hear but cannot heed the alarm, and find yourself in the position of lawyer #3 (or 4 or 5 . . .), there are a couple of things you can do to reduce the risk that your engagement will end badly.  First, learn and know the file before the substitution is signed and you take over.  This can and arguably should include a heart-to-heart conversation with your predecessor(s).  As uncomfortable as this can be, it’s worth the effort.  Second, get a healthy retainer up front (assuming the matter is not a pure contingency fee case).  Most important, though, take the time to have an in-depth conversation with your new client and pay particular attention to whether his or her expectations about your involvement and the outcome of the case are realistic.  Unless your predecessors were first class idiots, avoid making promises or representations to the effect that you can guarantee a better outcome.  Because you simply can’t.

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Don’t Serve Discovery Unless You’re Willing to Go to the Mat: One Caveat

Yesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information.  I just need point out a single exception to this view:  discovery through depositions.

Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence.  But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).

Certainly depositions should not be an exercise in free association thinking.  Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish.  But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail.  I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.”  When it comes to depositions, I disagree.  Don’t be afraid to “fish.”

The most important skill in taking depositions is not asking clever questions, but listening.  Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic.  Why is it a sensitive topic?  We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully.  This take patience and persistence.

This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective.  But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way.  The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer.  That filter is generally missing in a deposition.

Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically.  While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer.  In other words, you have to dig deep to find the gold!

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Don’t Serve Discovery Unless You’re Willing to Go to the Mat For A Response

One of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve.  This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do.  I think also that, as a young associate, I was always looking for ways to maximized billing opportunities.  Actual strategy rarely entered the equation.

I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.”  Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying.  He was absolutely right.

My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun.  As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).

I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter.  Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client.  There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result.  So every task, not just discovery, needs to be calculated to advance the ball.

On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery.  In fact, quite the opposite is often true.  An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.

My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client.  If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case.  I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense.  The same holds true, only opposite, if I’m representing a defendant.  This is elementary, but I’ve seen a lot of discovery (and written some  over the years) that strayed pretty far off topic.

If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response.  Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it.  If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?

This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience.  By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.

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What Is A “Managerial” Judge?

In the course of researching a question about judicial discretion, I recently came across an article discussing “managerial” judges.  The author, quoted below, argued that managerial judges are dangerous and something which should be discouraged, if possible.  Is this fair?

The term “managerial” judge was reputedly coined in a 1982 Harvard Law Review article by Judith Resnick, entitled, ironically, Managerial Judges.  She used the term to describe a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution and encourage settlement.”   Thornburg, “The Managerial Judge Goes To Trial,” 44 U. Rich. L. Rev. 1261 (2010) (citing Resnick’s article).

This definition sounds neutral and constructive enough.  But trial lawyers who have lived with a case presided over by a managerial-style judge know they can be difficult, unpredictable and downright scary. The key to their danger lies in the phrase “using various procedural tools.”  Consider some examples.  The simplest I can think of was a judge who, seeing that the parties were disinclined to seriously discuss settlement, scheduled a lengthy trial to start on December 26th, the day after Christmas.  Other judges routinely withhold or time issuance of rulings to impose maximum leverage on one or both parties to come to the bargaining table.

When I was a first year lawyer I witnessed a California Superior Court judge order the entire legal staff of a Big Three automobile manufacturer to travel from Michigan to California to attend a settlement conference the next day because the judge felt the car maker was not being appropriately generous in settlement negotiations.  Put yourself in the shoes of the car maker’s lawyer (my boss at the time) telling our client over the courthouse pay phone (this was in the early 90s) to round-up her colleagues, pack a bag and get to the airport!

I’ve seen and heard of other judges doing radical things with discovery or the presentation of evidence, like completely rearranging the order in which the parties presented their respective cases to the jury.  This seems less calculated to pressure settlement negotiations, and more to fit the judge’s personal vision of how the case should progress.

Whatever the purpose, there is no question that, at least in Federal District Court and California civil courts (where I practice) judges possess enormous discretion to dictate, with extreme detail if they desire, how a case progresses from filing to resolution.  The question is whether judges who seize this discretion and micro-manage cases are furthering or hindering justice.

In my next post, I’ll explain why I think the parties to a lawsuit actually benefit from being assigned to a judge with a managerial style.

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Tarle v. Kaiser: You Must Oppose Objections to Argue Them On Appeal of Summary Judgment

Anyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary.  This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.

Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions.  In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment.  The employee opposed the motion, including submissions of 750 pages of evidence.  In reply, the employer submitted 335 separate objections to the plaintiff’s evidence.  Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.

The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment.  The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections.  Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court.  It said.  “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”

This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions.  Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire).  Tread carefully!

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What You Want To Know About Your Opposing Counsel, Part I

One of the first things I look at when I get involved in any new case is who is my opposing counsel.  Though I’ve never practiced in a small town, the legal community in Southern California is smaller than you’d think when it comes to lawyers who concentrate their practice on a particular area, such as employment discrimination or product liability lawsuits.  If the lawyer is someone I’ve come up against before, I generally have a pretty good idea what to expect.  But if the name or the firm is unfamiliar, I like to do some research, to find out who I’m up against.  Here’s what I look for, why, and where I look to find it:

1. Firm or solo practitioner.  Is he or she a part of a partnership or a solo?  This is usually evident from the caption of the complaint or letterhead if we’re in the presuit stage.  Why do I care? If it’s a mega-firm, I expect the opponent is well-funded (by their nature, big law firms tend to be expensive, though not always) and I’m likely to encounter a “team” of lawyers on the other side.  This doesn’t make the case easier or harder to win–it’s just a factor.  If it’s a smaller partnership or solo, and the case is one taken on contingency (where the lawyer fronts time and expenses) the ability of my opponent to properly fund the case, through trial if necessary, may become a factor.  Sometimes I will see an anomaly.  If, for example, a partner from a high-powered BigLaw firm has taken a small case on contingency (a rarity), it suggests he or she may have some personal stake in the outcome.  Perhaps the party is a family member or close personal friend.  In either event, the lawyer may not be as objective about the case as if it was an arm’s-length representation.

2.  Bar number.  How seasoned is my opponent?  Assuming they were not previously admitted elsewhere (a dangerous assumption), I can make an estimate based on Bar number.  Whether I’m facing a new lawyer or a veteran does not, by itself, make the case harder or easier to win.  But I know from experience that a sole practitioner fresh out of law school will tend to exercise different judgment than someone who has been practicing for a few years or longer.

3.  Website.  I access the opponent’s web site.  I still sometimes encounter lawyers working by candlelight who have not invested in a website.  When this is the case I picture (perhaps unfairly) a caveman (caveperson) lawyer on the other side.  The problem is that some cavepersons really do know how to build and try a case (and connect surprisingly well with jurors–some of whom are also cavepersons), so it’s not any automatic comfort.  Assuming there is a website, this provides a wealth of information.  For example, do they focus their practice or dabble in every area under the sun.  Do they have a professional picture, or are they wearing a flowered Hawaiian shirt?

In Part II of this post, I will explore additional sources of information and what kind of information I consider useful and why.

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