The old adage “know thy enemy” certainly applies in litigation when it comes to knowing the lawyers and law firms representing the opposing parties. But what if you did not know anything about the reputation or tendencies of your legal opponents? Would you actually perform better?
It is safe to say that whether you are a plaintiff-side lawyer looking at a statement of defence or a defence counsel browsing through a statement of claim for the first time, one of the first things you will notice is who is acting for the opposing party. I can really only speak from a personal injury and insurance defence standpoint, but usually as a defence lawyer, my first perception of whether a claim is legitimate or potentially a significant matter relates to who is representing the plaintiff. Certain plaintiff-side personal injury law firms specialize in claims seeking significant damages and they would not normally bother taking on a case with a low value or where liability was contentious. On the other hand, there are quite a few plaintiff-side personal injury law firms that seem to have their fair share of weak cases where liability is a big question mark.
The reputation of the lawyer or the law firm can provide a good glimpse into how the litigation will unfold. From the defence perspective, is the plaintiff lawyer known as unreasonable and inflexible? Is the plaintiff lawyer known to make outlandish settlement demands that have little to no rationale behind them? Similarly, from the plaintiff perspective, is the defence lawyer known as being cheap and stubborn when it comes time to negotiate?
Even if you don’t recognize the name of the lawyer representing the opposing party, the Internet and particularly law firm web sites provide a great deal of information for you to form an opinion of your legal adversary. If a firm has 10 lawyers and it is the most junior lawyer there acting on the file, that might be enough to inform you, rightly or wrongly, on how important the claim may be. Even something as simple as a lawyer’s law society number on a pleading can tell you roughly what vintage or year of call the person may be. If that is not enough, you can always ask colleagues about your opponent’s reputation.
In my view, most lawyers would agree that having as much information as possible on an opposing party’s counsel can be of some benefit in deciding how to handle a claim. However, once you know who your legal opponent is, it can be difficult to stop your subconscious mind from making conclusions or acting in a certain manner based on the other lawyer’s reputation.
For example, if you perceive the plaintiff’s counsel as a leader in the field, you might wrongly expect that any claim that lawyer acts on will be worth a lot of money. While this type of information is definitely important to know, it sometimes has the effect of moulding the defence lawyer’s subconscious mind into thinking the plaintiff’s matter can only settle for an unusually large amount of money when that may not be the case. The same situation may arise on the other side where the plaintiff-side lawyer’s subconscious mind might think the case will not be able to settle without substantial compromise.
By the time you have practised law for a few years in a certain field, you may know just about every other lawyer in that area. But what if you had no idea who your legal opponent might be? Would this lead to a better result? Certainly, when I was a young lawyer in my first few years of practice, I did not know much, if anything, about my legal opponent. This led me to take tough positions against very senior counsel with sometimes surprisingly good results. In particular, I can recall one claim where I faced off against a senior experienced litigator and simply held ground with my client’s position despite enormous pressure and curveballs from the opposing counsel.
While trying to illustrate how not knowing anything about your legal opponent can sometimes lead to better results, I am reluctant to provide concrete examples from my legal experiences without infringing on the deemed-undertaking rule or naming other lawyers. However, I can illustrate the point through some of my sporting experiences.
More than 20 years ago, I was scheduled to play a men’s open tennis tournament in Kingston, Ont. Due to my poor estimate of how long the drive would take, I arrived just in time to start my match. I essentially got out of my car, registered at the front desk, and headed towards the court where I was going to play without even looking at the tournament draw or who my opponent was that day. An older, poorly shaven man greeted me. He was not wearing any tennis clothing from any of the big manufacturers but instead had a plain grey T-shirt on.
My first impression was that I should be able to beat this guy. The first set was close before my opponent ran away with the match. I ended up losing by a score of 6-4, 6-2. After the match, I learned I had just played the No. 1 seed in that tournament. I was quite surprised given that I still felt I should have beaten my opponent. I was even more surprised when I later learned my opponent had crushed everyone else in the tournament, including people who would routinely beat me. I ended up obtaining the best score in the tournament against the No. 1 seed and the eventual winner.
There is no doubt in my mind that had I known who I was playing that day, the result would likely have been a lot worse for me.
Another example that comes to mind was when I played squash for the first time against someone known as the Brit. Given that I was new to Toronto, I had asked the squash pro at my new club to recommend some squash opponents for me. One of the first people I played was the Brit. I certainly had no idea who the Brit was before we played that first time. We ended up having a very close match that I won. We soon began playing on a regular basis and to my dismay, I never beat him again in any sort of legitimate encounter. Again, had I known about the Brit’s squash reputation in advance of our first match, I would have likely lost our first encounter.
These examples might suggest it may be better not to know anything about your opponent heading into battle. However, I am of the view that as long as you are cognizant of your own presumptions and biases, the more you know about your legal opponent, the better off you will be. Nothing can replace thorough preparation and that includes knowing as much as you can about your legal opponents.
Olivier Guillaume is a partner who handles litigation matters at Borden Ladner Gervais LLP in Toronto.
