Sizing Up Your Opponent for Trial: Three "Tells" Tell All

• Pages: 30-31
• Date: 01 July 2024
• Author: Hon. Mark A. Drummond (Ret.)
• Subject Matter: Civil Law

By Hon. Mark A. Drummond (Ret.), Litigation News Associate Editor

Know the enemy and know yourself; in a hundred

battles, you will never be in peril. —Sun Tzu

If you’re playing a poker game and you look

around the table and can’t tell who the sucker is,

it’s you.—generally attributed to Paul Newman

reat trial attorneys do the groundwork for the

win. Groundwork includes assessing the evidence,

the witnesses, the trial judge, and the opponent.

Our focus today is on the opponent.

What you are looking for is your opponent’s

trial experience. Some attorneys never risk putting it on the

line. This information is crucial when evaluating settlement.

As a trial judge, I would sometimes double-book cases. Why?

I knew in one of the cases one of the attorneys would not go

to trial.

Knowing about your opponent helps you prepare your

own client for deposition. Being able to tell the client what to

expect has value. Forewarned is forearmed.

Sizing Up Your Opponent for Trial:

Three “Tells” Tell All

Of course, you will do direct research on your opponents.

You will read their background posted on their website. It is

perfectly ethical to search their name on the internet to see

what they may have posted. The best research is to see if you

can talk to someone who has handled a case against them.

As I gained more experience trying cases, I also concluded

there were “tells” that gave me insight into my opponent’s trial

experience. In poker, a “tell” is a physical habit that a player

may display depending on whether they have good or bad

cards. I believe there are three “tells” in trial work. The previ-

ous columns listed in the Resources section below form the

basis for my belief.

Deposition Admonitions

Some opponents rush through the crucial admonitions at the

beginning of depositions. They combine the admonitions. They

go over them too fast. They do not get the deponent to agree

to each one separately.

After rushing through admonitions, and perhaps skipping

some crucial ones, all they get out of the opponent is a dazed

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