When it comes to litigating a case, your client’s objectives are only half the story. If you want to gain an advantage, you’ll also need to successfully assess your adversary’s goals, capabilities, and willingness to fight.
First, consider what your adversary hopes to achieve. As you do with your own client, consider your adversary’s goals and objectives. Some litigants may be most interested in achieving an early settlement or business resolution; others may focus, at least initially, on what they see as matters of principle. Still others may enjoy the thrill of the fight and lose track of what they are fighting about. Most often, however, economic considerations will be a central factor—for the plaintiff, “how much can I recover,” and for the defendant, “how little can I pay.”
Example 1: A well-prepared complaint or immediate requests for extensive discovery may indicate a willingness to spend the time and money necessary to go to trial.
Example 2: A settlement demand made at the beginning of the case clearly indicates a preference for an early settlement.
Example 3: When opposing counsel has a contingency fee arrangement, consider how that fee structure might figure into their ultimate objective and strategy.
Next, consider your opponent’s ability and willingness to litigate. Remember that just because there’s a will doesn’t mean there’s a way. Evaluate whether your adversary can and will litigate by considering the following factors:
- the scope and nature of the case;
- the financial resources they may have available for the litigation;
- how aggressive they are at the outset of the case;
- their willingness and ability to invest time and emotional energy in the lawsuit;
- the experience, ability, and reputation of opposing counsel;
- how they have dealt with other litigation, e.g., usually settles or usually proceeds to trial; and
- their risk tolerance.
These considerations will help you formulate your case strategy, starting with your discovery plan. For everything you need to know for planning your litigation strategy before and during trial, turn to CEB’s California Civil Procedure Before Trial and California Trial Practice: Civil Procedure During Trial. Get step-by-step guidance in CEB’s Creating Your Discovery Plan.
Other CEBblog™ posts you may find useful:
- Educate Before You Litigate
- 5 Things to Cover in Your Initial Case Assessment
- Calendaring Your Discovery Plan
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