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Hiding the ball

Many litigation lawyers have a weakness for sports metaphors. This is probably because litigation is in some ways like a competitive game.

But there are also important differences. One is that games tend to be played on a level playing field; but in litigation what stands for the playing field is the facts of the case. Those almost always favour one side over the other.

This means that how skilfully you play the game has much less influence on the outcome of litigation than – say – tennis. If you are Andy Murray and you play a match against an ordinary local tennis club player, then unless you’re drunk, asleep or not trying, you will win. But in litigation, the better advocate can just as easily lose as win: because most of what determines the outcome is the facts, not the skill of the advocates.

One of the practical results of this is that you can’t relax just because you don’t think much of your opponent. An opponent who makes a series of hopeless arguments isn’t necessarily doing you a favour. He may inadvertently be ‘hiding the ball’. In other words, he may have a good point that he’s concealed from you by surrounding it in nonsense.

That’s ok if your opponent succeeds in hiding the ball from the tribunal, too. But it’s dangerous if the tribunal manages to spot it but you don’t: then your opponent’s best point is being made for him by the people who will make the decision in the case, and you’re not ready to meet it.

The only defence against this is to look hard at the other side’s case, and ask yourself what points you would make if you were representing them. If there are good points that they have left out, don’t make them for them, obviously; but do be ready for the possibility that the tribunal will.

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