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What it feels like to be outlawyered - and how to keep a level head when it happens

There will be times when you best your opponent, but there will also be times when they best you. When your opponent gets the better of you, it might feel like you’ve been up all night preparing your case while your opponent was out making connections at happy hour. It might feel like your opponent saw your every move coming. It might feel like your opponent had an inside track with some unique insight to your judge.

When you’ve done all you can to prepare, yet you still wind up on the wrong side of the outcome, it’s time to study what went wrong and critically evaluate what happened. It’s not always about differences in personal skill. In such situations, it’s quite likely your opponent knew something you didn’t.

Here are four signs your opponent knows something you don’t:

1. Opposing counsel knows the specific courts and judges your judge favors

  • The judge is only citing to authority listed in your opponent’s brief.
  • While you and your opponent both found cases with similar holdings, opposing counsel found cases your judge was already familiar with.
  • Opposing counsel was able to rely upon unpublished local precedent you did not find in your research.

When your opposing counsel cites cases your judge is already familiar with, it would be natural to attribute this to factors you can’t replicate, such as luck or prior familiarity with the judge. But what if it’s more than that? What might initially appear as luck or familiarity could be access to data that helped opposing counsel to inform their strategy.

2. Opposing counsel is punching above their weight

  • They are responding with the quickness and precision of a firm with more associates, paralegals, and staff than they have.
  • They seem to be better able to rely on data when planning their case and making their argument.
  • They seem to be attracting bigger clients than you would expect while keeping them happy with excellent results.

When you notice other firms are punching above their weight in terms of landing big clients or producing a higher volume of quality work product than you’d expect based on the size of their firm, it would be easy to surmise they are putting in long hours and working themselves to the bone. But, it’s just as likely that they have invested in tools to help them be more efficient in their research, litigation, and practice management.

3. Opposing counsel is seeing the things you’re missing.

  • They found the perfect case in a local court to support their argument, and you didn’t see it coming.
  • When you think you have your opponent cornered on an issue, they find the exact nugget of information that undermines your gambit.
  • After you strain to find a citation to support your argument, opposing counsel turns it around on you with conflicting higher authority, sinking your case.

When you find an opponent who seems to have an unusually strong grasp on case law and always seems to find the perfect case to support their position, you will have a difficult time on your hands. But you might not be on equal footing. There is a good chance they have invested in the right citation analysis tool that helps them verify their work and helps them poke holes in other attorneys’ work.

4. Opposing counsel is managing timelines and contingencies better than you are.

  • They seem to have a superior game plan and are managing their resources better by anticipating when and how the court will rule.
  • They are confident about knowing when to settle and when to charge into litigation.
  • They seem to be doing it all with ease, showing few signs of stress and pressure.

When you see an opponent anticipating timelines and managing contingencies well, it’s easy to scratch your head and wonder how they seem to know the unknowable. In these situations, it’s almost certain they have access to data-driven analytics that helps them see trends and patterns that were all but undetectable a few years ago.

Closing the knowledge gap

Although it’s frustrating to be outlawyered, the good news is that you can close the knowledge gap when you study the situation carefully. When you move your focus from the signs you see at the surface, you’ll start to recognize what is driving those results behind the scenes. And once you see what’s driving the results, you can level the playing field.

Level the playing field

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