How to prevent opposing counsel from using your opinion leadership against your clients | Copo Strategies + Editorial Services for Law Firms

There is an incredibly simple technique that lawyers can use to prevent the opposing side from using their opinion leadership against their clients in court documents.

In some law firms, it is not uncommon for lawyers not to publish their opinion leadership because they fear that the opposing side could use it against them or their clients in the future.

But by doing one simple thing—what you learned on your law school finals to get the highest grade—you can prevent opposing counsel from using your opinion leadership against you.

That's one thing? Argue both sides.

A legitimate fear…

This fear is most pronounced among those lawyers who, by virtue of their practice, may find themselves on both sides of an issue.

Business, family and intellectual property litigators likely fall into this category. In one client's case, they may argue for a particular interpretation of case law or a statute. Later, in another case, they may have to argue for a contradictory interpretation.

Although not uncommon, lawyers who publicly advocate in an article, blog post, or other writing what they believe to be a viewpoint that does not hinder the interpretation of a case or law may be vulnerable to “gotcha!” attacks from the opposing side seeking to embarrass them in court filings or other legal documents by invoking their opinion leadership against themselves and their clients.

Although this type of attack is unlikely to score points with a judge, it can be embarrassing for a lawyer if his client sees the legal document and asks why the opposing side is citing the lawyer's thought leadership in support of an argument he is making against the lawyer and the client.

. . . this is easy to overcome

If you're worried that this might happen to you if you write a thought leadership post on a particular legal development or a “best practice” post on a topic that comes up frequently in the cases you handle, you can alleviate that worry by simply playing both sides.

After reviewing a legal development or clarifying the facts, describe the best course of action for handling it. As you begin your analysis, make sure you consider both sides of your arguments.

Explain why the legal development is noteworthy, discuss what it means for people who might be affected by the legal development, and then argue against what you just said, just as you did on your final law school exams.

If you are writing a best practice article or similar article that is not about a recent legal development, you can introduce opposing views by saying, “On the other hand,” or “Some people would prefer,” or something similar, and explaining why there is a reasonable alternative approach to what you have discussed.

You want to make sure that when opposing counsel encounters a particular thought leadership approach you have created, you do not take one side of an argument so forcefully and uncompromisingly that they could hold your thought leadership approach against you if you were on the other side of the argument in a particular matter for your client.

Being off the fence doesn’t have to weaken your thought leadership

You may wonder if presenting both sides of the argument in a thought leadership post dilutes it.

That is not the case.

I wouldn't recommend that your thought leadership ALWAYS be on the fence. If your thought leadership never takes a one-sided position on the issues you cover, you're missing the opportunity to show your customers that your views on the world align with theirs.

However, in a few cases, you may find yourself on one side or the other of your thought leadership issues, depending on your clients' concerns, and argue that both sides should not turn against you.

They still provide analysis.

They continue to provide guidance and insights.

They are still explaining the “so what” and the “what now” of a legal development.

You are still an opinion leader. You are simply presenting both sides of your arguments to prevent opposing counsel from using your opinion leadership against you and a client.

Don’t throw the thought leadership baby out with the bathwater

For many lawyers, this need to argue both sides will never come to fruition.

If your firm always represents the same clients, such as plaintiffs in personal injury or consumer rights lawsuits, or insurance companies and financial institutions in those lawsuits, you don't have to worry about representing both sides. You will always argue that a particular law or court decision should be interpreted in a certain way because that interpretation will always be favorable to your similarly situated clients (perhaps with a rare exception).

The fear that a thought leadership piece of content could be used against you and your client should not stop you from creating that thought leadership piece of content.

If you ever worry that opposing counsel might one day use a thought leadership piece of content you considered against one of your clients, just remember when you were in law school and argue for both sides.