WHAT TO DO WHEN OUTCLASSED BY AN OPPOSING LITIGATION LAWYER
You realize in the middle of a hearing that your opponent has more experience, advanced skills, and better grasp of the case, than you.
Yes, you prepared.
Even the adage in litigation applied to you: prepare, prepare, prepare. (It’s supposed to be repeated 3x for those asking.)
But, what can you do, when you are faced with a true Master in his element.
You even sensed and acknowledged the mismatch of your skills. While you yourself are experienced, you realize the gap between you and your opponent.
The distance is so wide that you would need 3x more the years of experience before you reach his level. (Of course, by then, your opponent would have improved as well if he is true to the mastery of his craft.)
Worse, you are not in your element. You have specialized on a different field for the past few years that your litigation skills have been placed on the backseat all this time.
Yes, you can fight. You just wish it was someone else on the other side.
I found myself in that situation a year ago.
Thrust into a handling a complex case which had its own peculiar business language and terminologies, barely having two weeks to synthesize everything that has happened including all incidents up to the merits hearing (I inherited the case at the time when about 15 witnesses will be presented for direct, cross-exam, re-direct, and re-cross), and having specialized in labor law for the past several years, I found myself in a David and Goliath fight, not only from the point of view of the parties (Complainants v. Big Company), but also between counsels (2 plaintiff lawyers v. 4 defense counsels plus 3 of their witnesses were lawyers, that makes for 7 lawyers).
The number of lawyers on the other side did not matter to me.
As the main handling lawyer, what got my attention was the chief defense counsel.
I realized immediately that I was facing a Master. I sensed it. This, even before I learned who he was and what he did. (I got caught up studying the case that I had barely the time to research on my opposing counsel.)
Having assessed the situation clearly, I realized that I had to proceed methodically and follow my system.
I acknowledged that this was a unique scenario which called for drawing everything I have learned and was taught to me on litigation.
The Navy Seals quote applied to this case (meaning, this was a code red):
“Under pressure, you don’t rise to the occasion, you sink to the level of your training.“ (Popular version.)
(Actual version: “We don’t rise to the level of our expectations, we fall to the level of our training.”)
If you find yourself in a similar situation, this is the system I recommend:
1) Regain your presence of mind.
2) Acknowledge the situation.
Yes, acknowledge the difference in your experience and skill set. Keep this in mind when moving forward. This will make you more careful and discerning in your actions and words.
3) Sink to the level of your training.
Go back to the basics. (Wax in, wax out.)
While many will say to go head to head in this type of situation, I say otherwise.
You are faced with with someone who is superior to you in every way. You will likely trip if you go head on.
In situations like this, what you need to do is to hold out against him.
That means, you use basic skills (which you should have mastered). If you do, and if you have been diligent in sharpening the basic skill set needed in litigation, even a mighty opponent cannot do a lot of damage against someone defending himself using advanced basic skills (sounds like an oxymoron, but its the best way to describe it). A defense using basic skills can sometimes be enough against a Master. Of course, you are kidding yourself if you think you will not take a hit. You will likely take damage; the good side is that it will not be a critical hit.
On the attack side, you are likely to get points in your favor if you are patient enough to wait for an opening. Even a Master (especially once irritated, wink-wink) can trip.
This is my system for situations like these. I would not be recommending it if it does not work. In closing, the case lasted for almost two weeks straight, from 9:00am to 5:00pm, about 15 witnesses in all. In all humility, as a team, we won.