5 Tips To Give You the Winning Edge! / September 01, 2008
by Jeffrey Huron

In our adversarial justice system, as in every competition, the best side does not always win. To give yourself the winning edge, you must always keep at least one step ahead of your opponent. Here are five essential tips that will help you succeed.

1. Know Your Judge. The reality in litigation is: “The law is whatever the judge says it is.” According to the 2007 Court Statistics Report, the California Court of Appeal affirmed 88% of decisions made by trial judges between 2005 and 2006. Therefore, it pays to know your judge. You can find information about judges on the Internet, by word of mouth, from bar associations and in Judicial Profiles. If you have never appeared before the judge, you should make a point of observing him and talking to attorneys who have appeared before him. If you determine the judge is not right for your case, you may disqualify the judge within ten days after he or she is assigned to your case. Of course, if you do disqualify the judge assigned to your case, there is always the possibility of drawing a less desirable judge that you then cannot disqualify. The more you know about the judge – his or her judicial temperament, attitude towards discovery disputes, sanctions, motions for summary judgments, and the way he or she conducts trials – the more you will be able to tailor your litigation approach to get the best out of the judge for your case.


2. …And Know Your Opponent. Your opponent’s written work may be lacking, but he or she is brilliant in court. Your opponent may be a paper tiger, but an inexperienced courtroom lawyer. Some attorneys are shifty; some are emotional; some are bullies; some work harder than others do. In litigation as in tennis, learn your opponent’s weaknesses and then exploit them. If your opponent has a poor backhand, make him use it as much as possible.


3. Focus, Focus, Focus. There is a German expression – blind energy hurts your case. Begin by meeting with your client to identify the litigation goals. Gather all the documents and information and identify the problem elements of your claims or defenses. The idea is to develop a winning strategy and theme early, thereby narrowing your litigation approach. By focusing on what’s needed to win your case, you save time and money, delivering your message to judge and jury on target. Just like a good baseball hitter who does not swing at wild pitches, don’t waste time on useless claims and defenses or irrelevant issues.


4. Tenacity and Creative Thinking Are Rewarded. Not surprisingly, your opponent will play “hide the ball” and avoid getting pinned down. Unfortunately, many attorneys are not tenacious or creative enough about ensuring victory. Think outside the box! How can you get the evidence needed to win the case? There are always creative ways to locate evidence an opponent fails to produce. For example, in one case, a lawyer whose client died in a helicopter crash sued the helicopter company, alleging that a defective part caused the crash. The company did not produce any documents helpful to the plaintiff’s case, but the plaintiff’s lawyer was tenacious and creative. He researched other helicopter accidents and learned of a similar accident, which led to the discovery of a prior lawsuit against the company in another state. After tracking down the plaintiff’s lawyer in that similar accident, and after obtaining and sifting through old files, there it was: an internal company memorandum recommending a recall of the part. The result: a $14 million verdict in a case that the lawyer would have otherwise lost. Hard work and innovation pay off. Passivity can lose – bigtime. Are you doing enough to win your case? The best athletes – just like the best lawyers – never give up.


5. Experts Matter. Many attorneys underestimate the importance of identifying and retaining the right expert witness, who can make or break your case. Therefore, you should determine at the beginning of the case – not the end – whether an expert would be helpful. First, this will give you enough time to find the right expert for your case rather than the expert who is not your first choice but simply happens to be available on short notice. Second, thinking ahead allows you to collaborate with your expert. After speaking to him or her, you may need to alter your strategy. If you wait until the eve of trial to hire an expert, there may not be adequate time to change strategy or obtain materials overlooked during discovery. Hiring an expert early also gives him the time to perform his analysis without rushing. Selecting and getting the most from the best players are key ingredients to every winning team.