The virtues of investigating your judge and opposing counsel

December 28, 2016

Businessman looking through a magnifying glassPracticing attorneys are largely aware that most cases settle before trial.  The reason for such a high rate of settlement is mostly because of the high level of uncertainty surrounding walking into the courtroom and leaving the decision of the ultimate outcome of the case to someone else.

Unfortunately, sometimes there’s just no avoiding a final courtroom showdown.  So how can attorneys prepare for it?

Obviously, attorneys must prepare their respective cases as well as possible.  But that’s always just good practice.  The less obvious advice?  Attorneys should familiarize themselves with their opposing counsel and judge.  Having insight into the kind of people with whom you’ll be dealing in the courtroom may be invaluable to shaping your arguments.

This assessment can be conducted using a variety of methods.  The simplest of these is just reviewing existing legal writings of the subjects in question, which can often reveal the respective viewpoints and argument styles of their authors.

But these same authors are also actual human beings – and as such, have physical presences in the real world.  And these presences leave footprints that can provide clues about their inclinations and biases.

How can you begin researching this?  The most accessible source of such information is in public records.

But “public records” being the expansive term that it is, where do you begin?

Organizational affiliations

The businesses and organizations with which a person associates can be very illuminating into the kind of person he or she is, and an online people search into an individual’s organizational affiliations is as good a place as any to start your investigation.

True enough, affiliation information may not always be pertinent, but one’s business connections can nonetheless expose valuable insight in a surprising number of situations.

For example, organizational ties to a particular industry could signify experience or expertise in that field.

For instance, what if your judge has connections to the hospitality industry?  This could indicate a personal or professional history within the trade, and consequently, employing arguments and analogies in your current case that are borrowed from elements of the hospitality industry or the legal foundation thereof may resound strongly with the judge.

Likewise, with an opposing counsel, a history in a specific industry may predispose that individual to staking related legal stances in your own case.

In addition, industry connections can bring with them certain individual biases.

What if your judge owns part of an oil and gas company?  Such an involvement can serve to inform about prejudices that the judge may hold.

Without a doubt, this kind of connection may be irrelevant in many scenarios – but it may prove invaluable in many others.

Footprint from social media

Because of the glut of personal information available on social media, attorneys are should be aware of the need to minimize their footprint thereon.  But that doesn’t mean that attorneys always are so careful.  Instead, some attorneys may disclose a surprising amount of information about themselves on social media.

There’s no rule stopping you from taking advantage of this overdivulgence.  Indeed, collecting any information revealed by your judge or opposing counsel on social media, you can better prepare yourself and your arguments. You may even be able to add a more personal seasoning to your arguments – one that reaches your audience on a personal level.

Just because your opposing counsel or judge have remained tight-lipped on social media doesn’t mean that you can’t get information about them on the platform.  For example, attorneys are much less guarded about their own professional and business associations – which, as discussed in the above section, can prove beneficial in a number of situations in the courtroom.

Criminal history

Largely because of industry self-regulations, attorneys and judges often have clean criminal records.  On the other hand, we’re all only human, so your target could have a noteworthy entry in his or her criminal history.

Although I would recommend against discussing this criminal history in your arguments or in any professional capacity, a criminal conviction or arrest can tell quite a bit about an individual.

If, for instance, a judge has a driving under the influence conviction, he or she may be more sympathetic to the burdens of alcoholism.  Conversely, if the judge endured a particularly harsh sentence may be looking to return the favor for the defendant standing before him or her.

Finally, those attorneys perhaps looking to hit a nerve with their opposing counsel can look into his or her criminal history to reference – again, subtly and indirectly – some less than savory events from that individual’s past.

Civil lawsuit involvement

Although attorneys are generally less likely than average to become entangled in a criminal prosecution, their training and experience often leads to a level of involvement in civil lawsuits higher than that of the average layperson – at least as a plaintiff.

Because of the ease of locating information on such lawsuits, it should be a relatively simple matter to determine whether your opposing counsel or judge is or has been involved in such suits.

The benefit to obtaining this information may not be immediately clear, but like many other types of public records information, the details of any civil suits in which your targets are involved can provide insight on a personal level – sometimes deeply so.

For example, your judge may be party to a shareholder derivative suit against one of the corporation’s senior officers.  If your own case is one involving a corporate defendant, the information about the judge’s lawsuit can provide significant guidance on strengthening your own arguments by aligning them with those of the judge’s presumed position in his or her own lawsuit.

Sometimes an individual’s very involvement in a lawsuit can speak volumes to that person’s biases and views.  As such, it’s wise to obtain any information available about your opposing counsel or judge if at all possible.

Media coverage

While even judges and attorneys with a lot of dirty laundry can keep an impeccably clean social media presence, it’s a bit trickier to exercise the same level of control over the news media.  And in this electronic age, bad press typically doesn’t disappear once it goes public.

Like nearly everything else discussed so far, negative press can provide personal insight about your target.  This information may, in turn, bolster your legal arguments in much the same way as other types of public data discussed already.  Though admittedly a bit less exciting, positive or neutral press coverage can also provide similar assistance.

Considering that news events are forgotten relatively quickly, however, online investigation software may be able to find media coverage about an individual or an event beyond the reach of traditional search engines.  In fact, such a principle may be true of any of the public records mentioned herein and beyond.

In the end, finding as much information as possible about your opposing counsel and judge is good strategy in just about any legal proceeding.  Any such possible data should be collected and integrated for use in your own case.

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