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

Posted on May 28, 2012

In addition to learning as much as I can about my opponent and the nature of his or her practice through his or her website, I also use the following resources to do more research:

4.  State Bar Information.  It’s pretty rare, but I do occasionally come up against someone who’s been disciplined, even suspended.  There are a number of reasons why a lawyer can be disciplined by the Bar, and it doesn’t always signify anything I consider relevant.  But it could, so I try to find out as much as I can.  For example, if the discipline has related to commingling client funds or failing to communicate with clients, it could mean the lawyer does not make it a priority to communicate with his or client.  This could become important later, if we get into settlement discussions and it’s critical his or her client is being kept informed of my client’s offer (or demand).  Information about Bar discipline is typically available on the State Bar website.

5.  Track record.  Does my opponent try cases?  This may not be readily apparent, but if I review the jury verdict sheets (I still use the paper kind) I can sometimes see if he or she has tried any cases in recent years and, if so, what kind of case and what was the outcome.  This information isn’t always available.  But if it is, it can be very revealing.  For example, it might show a pattern of taking meritless cases to trial and losing (or barely wining).  This becomes important when evaluating the likelihood of an actual trial later.

6.  Reported cases.  Has my opponent participated in any appeals that led to reported opinions?  Actually, Lexis and Westlaw even report cases that are not officially published, which further broadens the field.  If he or she was the sole attorney representing a party on appeal, this tells me that he or she probably has a fairly in-depth understanding of the issues and law in that kind of case.  If our new case involves the same issues, this is important information for me.

5.  Finally, I may send an email to some close colleagues and see if anyone knows or has dealt with my opponent before.  This can provide a great deal of useful insight.  One thing I’m looking for in particular is my opponent’s reputation for honesty or civility.  Is he or she someone I can trust when they promise to communicate an offer to his or her client?  Will I encounter resistance if I seek a reasonable extension or continuance?

From this information, I can generally get a decent “feel” for my opponent before I pick up the phone to call him or her and introduce myself (which I always do).  Over the years, I’ve found different information useful for different reasons.  Often, however, I know I’m going to be looking for leverage against my opponent or his or her client.  This can come from a variety of sources, including “situational leverage,” which I will discuss in future posts, such as a disinclination or financial  inability to take a case through trial.  The earlier I learn this the more I can shape my defense accordingly.

One factor to which I never give any weight, which some might find surprising: where my opponent attended law school.  I’ve encountered lawyers trained at the very best (ranked) law schools who had trouble knowing where to sign their last name, and really first rate lawyers who attended lesser ranked law schools.  I usually find experience level to be a far more telling predictor of competence in the courtroom than law school ranking.