Float like a butterfly, sting like a . . . Swifty? From Muhammad Ali's masterful prowess in the ring to Taylor Swift's re-recorded classics, the art of counterpunching has long been portrayed in societal—as well as legal—media.

In the courtroom, a counterclaim can be used to disrupt the legal strategy of your opposition or even in anticipation of an incoming legal threat. In this episode of Speaking of Litigation, Epstein Becker Green attorneys Max Cadmus, Victoria Flinn McCurdy, and Anthony Argiropoulos dissect real-world counterpunches and explore the tactical maneuvers that can turn the tide in legal battles.


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Transcript

[00:00:00] Max Cadmus: Today on Speaking of Litigation, we are discussing counterclaims and counter punching. I'm your host, Max Cadmus. I'm an attorney in the litigation department of Epstein Becker & Green in the Princeton office here in beautiful Princeton, New Jersey. The best defense is a good offense. Do you know who said that?

[00:00:20] Max Cadmus: George Washington. Not really, actually. He said, “offensive operations, oftentimes, is the surest, if not the only, in some cases, means of defense.” That's from a 1799 letter to John Trumbull. That was before they invented the soundbite, but I think what the general was getting at is, the best defense is a good offense.

[00:00:43] Max Cadmus: So to discuss that principle, we have Victoria McCurdy.

[00:00:46] Victoria McCurdy: Hi, Max.

[00:00:48] Max Cadmus: And Anthony Argiropoulos.

[00:00:48] Anthony Argiropoulos: Hey Max, hi Victoria, good to be with you again.

[00:00:52] Max Cadmus: Anthony, what are we talking about here? What do we mean when we talk about a counterpunch?

[00:00:57] Anthony Argiropoulos: Well, a counterpunch comes from boxing. And, you know, generally when we talk about a counterpunch in boxing, you're talking about a boxer, a pugilist, to use your fancy word, or a word that the general would use, but a boxer who is in a defensive position and is allowing an aggressive boxer to come to him to throw his punches and then at the right time, after glancing a blow or dodging a blow, that boxer lands the counter punch.

[00:01:32] Anthony Argiropoulos: We've all seen it. Everyone who's watching this podcast has seen an example of counterpunching, whether they're, you know, fans of the sweet science or not. Muhammad Ali, classic counterpuncher. I would say he's the greatest counterpuncher of all time. Ducking, weaving, unearthly speed. Drawing his opponent in and then after one missed punch, after one, you know, thrown blow that maybe shouldn't have been thrown, he comes in with a devastating hit.

[00:02:03] Anthony Argiropoulos: Another great example would be James Toney. James Toney, as he advanced in his career, was putting on some weight. He was kind of a heavy cruiserweight. And so he would kind of strategically allow his opponents to advance and advance and advance. And then same thing, counterpunch, and he was pretty famous for that.

[00:02:23] Anthony Argiropoulos: Now, you know, litigation is not boxing, it's not combat, you know, lawyers like to sometimes say that it's a form of combat. It's not. It's staged, there's a complaint, there's an answer, you know, things happen pursuant to procedure, but when we talk about counterpunching generally, we're talking about just that.

[00:02:46] Anthony Argiropoulos: About a counterclaim, an aggressive response to an action in litigation, at least when our group talks about counter counterpunching or counter offensives, what we're really talking about is disruption, right? A counterpunch disrupts the flow. It disrupts the strategy of your opponent.?

[00:03:11] Anthony Argiropoulos: In football, acounterpunching kind of a defense completely changes the offensive game plan. They don't just stop you. They intercept the ball and they score. They knock your quarterback out of the game. So when we talk about counterpunching in litigation, we're talking about disruption. Counterclaims, crossclaims, advancing defenses, filing separate lawsuits.

[00:03:35] Anthony Argiropoulos: You sue me here. No problem. I'm going to sue you elsewhere in a case that has jurisdictional issues that warrant that case to be brought in another court. Maybe it's an antitrust litigation, that sort of thing.

[00:03:50] Max Cadmus: Is a counterclaim always a reaction? I mean, are you always on a defensive footing when you throw a counterpunch?

[00:03:56] Anthony Argiropoulos: You're always going to be in a defensive footing when you throw a classic counterpunch, right? A counterclaim, you know, for instance, assumes that an initial claim has already been filed. In litigation, what a smart counterpuncher does is anticipate what's coming, and disrupts, you know, before that first punch is thrown.

[00:04:19] Anthony Argiropoulos: Example, someone sends you a very detailed threat of litigation, you know where it's going, so you file first. Don't make yourself a defendant. Bring that lawsuit first, take control, be the plaintiff, dictate the terms. And get the benefits involved in being a plaintiff as opposed to being a defendant.

[00:04:40] Max Cadmus: Victoria, I've heard compulsory and non-compulsory counterclaims mentioned. What is the distinction there and do you have different considerations when you decide about filing one or the other?

[00:04:49] Victoria McCurdy: Sure, well, compulsory counterclaims are the claims that have to be brought in the lawsuit. Otherwise, you basically forgo the right to pursue them.

[00:04:59] Victoria McCurdy: So they arise from the same transaction or occurrence as the plaintiff's claims. Those are kind of no-brainers, right? If you have them, you need to assert them. Non-compulsory counterclaims or counterpunches are those more non-traditional causes of action that you might have against your opponent that may or may not necessarily relate to the transaction or occurrence of the subject if the claim is asserted against your client.

[00:05:28] Max Cadmus: You mentioned non-traditional counterclaims. I mean, are we only talking about lawsuits that you can file and complaints that you can file? Or are there other things you can do that are outside the box?

[00:05:40] Victoria McCurdy: So I view my job as a litigator a little bit more broadly than you might expect.

[00:05:49] Victoria McCurdy: You know, we're here to help our clients either in terms of offensive or defensive litigation. But at the same time, it's important to know your client's business and know their ultimate business objectives because you're not just helping them within the four corners of the legal documents that you file, you want to be creative and think outside of the box and think of ways to achieve their business objectives, and also protect their interests.

[00:06:15] Victoria McCurdy: So I think one of the greatest pop culture examples of a non traditional counterpunch is Taylor Swift's beef with Scooter Braun. And Max and Anthony, I don't know if you're super familiar with that. I know Max doesn't frequent People.com as often as I do, but just to give you a little bit of background and hopefully explain why I think it's so cool.

[00:06:40] Victoria McCurdy: Taylor Swift was with a certain record company until about 2018. And then she left. Her old record company was purchased by this music mega manager named Scooter Braun, who has a reputation for being kind of a jerk. I don't know him personally, I don't know if that's true, but that's kind of his persona, at least publicly.

[00:07:05] Victoria McCurdy: And she was very upset by that because with the purchase of her old record label came the rights to her master recording. So anytime someone wanted to use a Taylor Swift song that had been recorded under her old label for a movie or a commercial, they had to go to Scooter, not to Taylor, and ask for permission and he would financially benefit from that.

[00:07:26] Victoria McCurdy: She was particularly upset according to media reports because Scooter had a close relationship with Kanye West, and as we all know, there was a whole to-do to-do between Taylor and Kanye. And she basically said, this is the worst thing ever. And now, as we all know, Taylor is worth eleventy bajillion dollars, right?

[00:07:45] Victoria McCurdy: And so this could have been a PR nightmare for her. It could have been, oh, poor Taylor, you have so much money. You know, why are you complaining? Or people could have just not really paid attention to it. But what she did was really, really creative. And ultimately she lost the battle, but won the war.

[00:08:02] Victoria McCurdy: She decided to re-record all of her songs that had been recorded under the old label. And so now, she negotiated the rights to the masters for those re-recorded songs with her new record label. So now folks have the choice between going to Scooter for licensing of those songs or going to Taylor, and you'll see on SiriusXM, for example, one of her songs will be playing, and you'll see a parenthetical after the song title that says “Taylor's Version.”

[00:08:33] Victoria McCurdy: And it's not only a way of differentiating between who has the rights to that music, who's going to benefit financially from that music in the licensing context, but it's also a way of engaging her fans, right? Her fan base is very much, you know, Team Taylor, and very against Scooter, even though legally he was right.

[00:08:56] Victoria McCurdy: It just doesn't feel morally right. And so it allows her not only to profit from these songs going forward, but also keep her fan base involved, and keep her songs playing, which I think is the ultimate gotcha. It's the ultimate TKO to follow with the boxing examples.

[00:09:18] Anthony Argiropoulos: Well, Victoria, I'm not saying that I'm the most faithful Swifty out there, but even I knew that Scooter was trouble when he walked in.

[00:09:23] Victoria McCurdy: Well played, well played.

[00:09:25] Anthony Argiropoulos: Thank you, thank you. What I think, so first of all, I think we all agree that Taylor Swift is just, you know, really singular in every way, right?

[00:09:42] Anthony Argiropoulos: She's a talented performer. More importantly, she's a talented songwriter. And through this maneuver, we see what I think we already knew, but she's an incredibly talented business woman, a true, you know, triple threat at minimum to say the least. What I think is particularly interesting about what you just described, and this is from the standpoint of counter punching is that you have to understand who your audience is. Now, the litigation that we handle, it's very often high profile. It's not the way it was 10, 15, even 10 or 15 years ago. Everything is public, right? It used to be that an unpublished decision meant that you couldn't find it. It wasn't published. Now they're all over the internet.

[00:10:34] Anthony Argiropoulos: You know, we talked about Lil Wayne's deposition and showed clips of it the last time. And so I think when you, when you're a litigant and you have been sued first, let's say, you need to take every opportunity, especially every public opportunity, pleadings, motion practice, anywhere where the press will be, anything that the press can pick up, you know, to advance your position and disrupt the other side. That's counterpunching, right? Examples. Someone files a complaint. They identify the parties, they identify the jurisdictional elements. They start to lay out the underlying factual basis.

[00:11:21] Anthony Argiropoulos: Well, you know, traditionally someone might respond with that identical format, right? Admitting as to who the parties are, admitting or denying jurisdictional elements, admitting or denying or lacking knowledge as to the factual allegations. That's not a counterpunch. A counterpunch would be taking the opportunity in that response to set forth your statement of the case, your press release about this, that lays out, this is what the case is about.

[00:11:53] Anthony Argiropoulos: This is why the plaintiff's claims fall apart at the seams. This is why the case is garbage. This is why we will prevail. And then maybe instead of going ahead and answering, why not put your counterclaim first? That's something that we like to do. We've done it recently in a number of cases, and get right to the heart of the matter.

[00:12:19] Anthony Argiropoulos: Answer second. Or when you follow your answer, you know, some jurisdictions are notice pleadings. Right? All you have to do is answer, deny, or admit, deny, etc. Others are fact pleadings. You have to kind of say things like, “the defendant denies the allegation, because…” I think it's very effective to think strategically and tactically about counterpunching at the right time, all the time.

[00:12:46] Anthony Argiropoulos: And if you have an opportunity to start to sink a ship, or an opportunity to start to whittle away at someone's credibility, and really put yourself in the position, even as a defendant and counterclaimant, to drive the story, to start making the plaintiff feel regret. A common expression that we use all the time is, “the reluctant plaintiff.” You will regret bringing a claim. We will find ways to use your greatest weakness, make it part of the case, make it relevant and focus on that.

[00:13:24] Anthony Argiropoulos: So these are examples of counterpunching, and I think that what we learned from Taylor Swift and your example is, you know, everyone's watching, you know, again, who's your audience? My daughter is going to buy, download, I don't know, I'm an old man, Taylor's version every single time.

[00:13:46] Anthony Argiropoulos: You know why? Because it's Taylor's version. And that's what makes her brilliant. That's a great example of, you know, a creative counterpunching.

[00:13:55] Victoria McCurdy: Anthony made some great points. I want to touch on one briefly, and that is the reluctant plaintiff, and this concept of shifting the dynamic.

[00:14:04] Victoria McCurdy: And that's really, as Anthony mentioned, what counterpunching is all about. I really enjoy the psychology of it, right? Because you can imagine an attorney working with their client and setting certain expectations about how the litigation is going to unfold. We're going to do X, Y, and Z after we file the complaint.

[00:14:19] Victoria McCurdy: We're going to take all of these depositions. We're going to make them produce all of these documents and answer all of these admissions, and we're really going to put the screws to them. And then, when your counterpunch comes, it completely shifts the dynamic, not only in the mind of your opposing attorney, but also in your client's opponent, the competing business or individual, whatever the case may be.

[00:14:44] Victoria McCurdy: And those are really important psychological considerations when you're deciding whether and when and how to counterpunch. It knocks folks back on their heels and completely shifts the dynamic, in terms of who's in charge, who's taking the lead. It also can broaden the scope of discovery.

[00:15:02] Victoria McCurdy: So generally, discovery is limited to the claims and defenses that are asserted. And if you broaden the claims by asserting new or different claims, you broaden the scope of discovery. So your opponent might have the expectation that, you know, these five things are fair game in discovery, but if you land a solid counterpunch, you might have the opportunity to dig into more than what your opponent was bargaining for, which can be very off putting and unsettling.

[00:15:31] Victoria McCurdy: Particularly if you have a more unsophisticated opponent who doesn't litigate frequently and is just really relying on representations from their counsel about how the litigation is going to unfold. They may not anticipate those types of counterpunches.

[00:15:48] Anthony Argiropoulos: You know, Victoria, you've very eloquently stated a strategy that we use all of the time, which is finding the appropriate ways to get matters that perhaps a plaintiff does not want to be part of the case, specifically part of the case.

[00:16:09] Anthony Argiropoulos: And a great way to do that is not by, later on in the litigation, trying to convince a judge why something is relevant or can lead to the discovery of admissible relevant evidence down the road, but rather point to the pleading and say, no, no, these customer relationships are relevant.

[00:16:36] Anthony Argiropoulos: The plaintiff has been on notice that this is an issue since we filed our answer. And I can point you to eight different parts of the answer where we specifically refer to it. Of course we're entitled to discovery on that. How can we not? It's central to the case. That type of strategic thinking, and really marrying strategy and tactics, is a wonderful way, I say wonderful, it brings a tear to my eye when we do it.

[00:17:03] Anthony Argiropoulos: But it really is a wonderful way to force your opponent to regret what it's done. And who is your opponent? Your opponent is not the other lawyer. Your opponent is the party. The lawyer is just the agent of that party. And you want, when you're representing your client and you're counterpunching, you want to cause, to the extent that you can, disruption. Disrupt that relationship. Lawyer, what are you doing?

[00:17:35] Anthony Argiropoulos: I thought that my client relationships and my customers wouldn't be brought into this. Now they are. That's a great way to disrupt. I think that you really hit it on the head. There's so many opportunities when you're thinking about, you know, how to defend in a very offensive way to turn your defense into an offense, to cause tremendous disruption, even in places where normally there wouldn't be, right?

[00:18:08] Anthony Argiropoulos: An answer is typically just a vanilla document that says admitted, denied, admitted, denied. Use it to counterpunch.

[00:18:16] Victoria McCurdy: Well, and that's another point that I wanted to emphasize, which is exactly what you said earlier, Anthony, that the answer is a great opportunity to start to message your theory of the case and what happened.

[00:18:30] Victoria McCurdy: And it's not just for the judge's benefit. It's for the benefit of your opponent. It's for the benefit of the public to the extent that it's a high profile piece of litigation. Very often news reporters will go to the public docket and pull all the pleadings and motions and sometimes they don't do the best job at articulating what the claims and defenses are.

[00:18:53] Victoria McCurdy: And so if you can do that, it's like a free press release, and one that is aggressive and very thoughtful because down the road, Anthony, as you mentioned, when you're in discovery and trying to, you know, obtain access to certain documents or information, you can point to that answer and say, no, no, we actually affirmatively asserted these facts and this is why we are entitled to this discovery.

[00:19:17] Victoria McCurdy: You know, we're not trying to hide the ball. We're entitled to it. We feel very strongly about our claims and our responses to the claims asserted against us. And we want to discover this information. And we're allowed to under the rules.

[00:19:30] Anthony Argiropoulos: Victoria, it's a point well taken. Very frequently we get phone calls from reporters, you know, journalists are interested, whether it's trade journals, whether it's name brand newspapers, that want to talk about a case and it is extremely effective to be able to have a call with someone and know that they've read your description of your case.

[00:19:59] Anthony Argiropoulos: They've read your description of your claims. They can cut and paste from that and use it in their article and they're just calling you for background information. You know, there are limits as to what an attorney can or can't say regarding a case. And so it's particularly important to have your message in the public record so that a reporter can look at it and knows, doesn't have to wade through dozens and dozens of pages and have to figure out what the hell your position is.

[00:20:32] Anthony Argiropoulos: It's great to have that reporter look at it, know it up front, and I, again, you just cannot understate the importance of that, of that messaging.

[00:20:42] Max Cadmus: You’re talking about reporters, but you know, the judge, the judge has to read it too. And it's just good advocacy. It sounds like, I mean, you put it up front, you make your narrative known, you make your themes known.

[00:20:54] Max Cadmus: To me, that's as important for punching as counterpunching. But let me throw a wet blanket on some of this because we all know that the plaintiff in this country has the burden of proof. The plaintiff has to prove their claims and we're all civil litigators, so we mostly work under a preponderance of the evidence standard.

[00:21:18] Max Cadmus: If you counterclaim and you make yourself a kind of plaintiff in the case, aren't you taking to yourself burdens that you wouldn't have to take? You could just be the defendant and have no burden of proof. Isn't it making your life harder in some ways?

[00:21:31] Anthony Argiropoulos: I think being a plaintiff is very important. No matter who you are, whether you're a plaintiff or a counterclaimant, whenever you make an affirmative claim, you have the burden of proof, right?

[00:21:47] Anthony Argiropoulos: So if you're defending, you don't have a burden of proof. It's the plaintiff that has the burden of proof. If you have a counterclaim, you have a burden of proof. But here's the benefit of being a plaintiff. The benefit is that you open first and you close second. You start off the trial and you end the trial.

[00:22:09] Anthony Argiropoulos: That's critically important in jury trials. I think that plaintiffs, you know, from that perspective have a significant benefit in the trial presentation and ultimately every case starts with a complaint and it's going to end with the trial unless something happens in motion practice, settlement, some type of dismissal, et cetera. But when you start a case, when you start a counterclaim, you are looking ahead to trial and from my perspective as an attorney who tries cases, you are in a much better position to open first, tell the jury what the case is about, let your opponents then react to that.

[00:22:57] Anthony Argiropoulos: And then let them close first so that you get the final word. I think that that's invaluable. And that's one of the reasons why I prefer to be a plaintiff as much as I can. I like to throw parties off balance. You know, they send a demand letter, sometimes they'll send the draft complaint that they intend to file to show you that they mean business.

[00:23:24] Anthony Argiropoulos: I don't like to show people what I'm going to do before I do it. Those are great opportunities to now get some intelligence about where the other side's coming from, and frankly shove it down their throat when you file your complaint first and completely disrupt their game plan.

[00:23:43] Victoria McCurdy: And Max, even in the context of asserting a counterclaim where you're still, you know, the defendant in the lawsuit, the burden shifting and your obligation to prove your counterclaim is really just the cost of doing business.

[00:23:59] Victoria McCurdy: It's akin to more attorney's fees if, you know, you're litigating more claims, there's going to be more discovery, there's going to be more costs, more fees associated with that. The preponderance standard is a bit more manageable than other standards and burdens of proof, like beyond a reasonable doubt in the criminal context.

[00:24:19] Victoria McCurdy: What does that mean? Probably means something different to everyone, right? But preponderance is a little bit easier to define. And that’s the burden of proof that we most often deal with in the context of civil litigation. And so I kind of view it as a non-issue. If your goal is to advance your client's business interests, and to disrupt the flow of the litigation, that's why you need to counterpunch.

[00:24:47] Victoria McCurdy: That's why you need to assert whatever counterclaims that you have or choose to be the plaintiff if you have that opportunity. The fact that you have to prove it down the road is just the cost of doing business.

[00:24:58] Max Cadmus: I get that completely. And that makes sense to me because when we defend cases, you know, we don't sit on our laurels and just wait for the other side to prove its case.

[00:25:08] Max Cadmus: We're always affirmatively defending the case. And so if you're doing that anyway, you might as well also be prosecuting your own claims in the case. If you can't be the plaintiff, you can at least be a counter, a counter-claimant. Anthony, I liked what you said because that focus on trial shows that counterpunching, counterclaiming, it's not just a short term negotiation tactic. You're actually thinking about how you're going to prove and prevail on the counterclaims. They're real, and the goal is always to win on them, not just to reach some kind of settlement.

[00:25:41] Anthony Argiropoulos: We've had cases, Max, where we have a client who was sued, or clients who have been sued. There's one particular one that I'm thinking about. And we filed a counterclaim. We dismissed the plaintiff's claims on summary judgment. And we proceeded to trial on our counterclaim. So one of the issues that we talked about with the magistrate judge is, well, we're not really a defendant anymore.

[00:26:16] Anthony Argiropoulos: What are we going to call you at trial? You know, where are you going to sit? Because the affirmative claims are gone. I have not seen a party in a more vexing situation than in that particular case. And this is, you know, maybe 10 or 15 years ago, I'm remembering, and the case settled right before a jury selection.

[00:26:38] Anthony Argiropoulos: Some people would have said that the counterclaim that we asserted was aggressive. It was, but it survived the entire case. It got us a discovery that we wanted. And at the end of the day, it resulted in a settlement in my client's favor, where my client was just a run of the mill defendant at the start of the case.

[00:27:02] Victoria McCurdy: I think that touches on another really good benefit to counterclaims, which is if you have a reluctant plaintiff or a plaintiff that doesn't have the budget or the emotional bandwidth to litigate a case beyond what they've already committed to mentally and perhaps financially, when you assert a counterclaim, you're trapping them in that lawsuit, for better or for worse until you decide that it's over.

[00:27:28] Victoria McCurdy: And so if you have a certain plaintiff's attorneys like we do that we come up against routinely who are a little more inclined to file lawsuits and then voluntarily dismiss them down the road, that takes that option off the table. So it's, we came to play and you better be serious if you sue our clients.

[00:27:48] Max Cadmus: What are some of the risks? I'm sure it's not always your strategy and it's not always the right strategy to file a counterclaim or make a counterpunch. When would you think twice and maybe advise against counterpunching?

[00:28:01] Anthony Argiropoulos: Every case is different. Every engagement is different. The fact, and I say this a lot, the fact that you can do something doesn't mean that you should do something.

[00:28:19] Anthony Argiropoulos: You have to think about it, because this is not, you know, these aren't just, to use the boxing analogy, you're not just spinning your arm like a windmill or spinning your body around hoping that you hit something. You have to be strategic. Your tactics have to be married to your strategy.

[00:28:38] Anthony Argiropoulos: Litigation is also about momentum. So you don't want to be in a position where you set yourself up as a plaintiff, on what would have been a counterclaim that is weak, only to find that claim being obliterated and now finding yourself, again, to use another boxing metaphor, you know, up against the ropes.

[00:29:03] Anthony Argiropoulos: One of the first things that fighters learn to do is to punch. A limp overhand throw is not a punch. That's a great way to break your hand. It's a great way to decide that maybe, you know, this fight was a bad idea to begin with.

[00:29:31] Anthony Argiropoulos: So I think you have to evaluate it. You consider your options. You think intelligently, you think strategically, you think long term. Just because you can file a counterclaim doesn't mean that you should. The last thing that you want is a series of losses, or, you know, a judge who's looking at your claim very, very skeptically.

[00:29:55] Anthony Argiropoulos: And suddenly you are exactly what Victoria and I have been talking about. You're the reluctant plaintiff with the claim that never should have been filed.

[00:30:06] Victoria McCurdy: So I completely agree with what Anthony just said. And I also think, as a part of this analysis as to whether to counterpunch, you've got to consider the elements of the claims that you're asserting and the type of discovery that you need and the scope of discovery that you need.

[00:30:22] Victoria McCurdy: When we work with more sophisticated corporate clients that maybe have affiliates or subsidiaries that are in slightly different industries or businesses from the parent, let's say, for example, it's important to consider whether what we need in discovery to prove our counterclaim or our affirmative claim if we've beaten our opponent to the courthouse, whether those positions in discovery are going to be positive or negative or neutral vis a vis the rest of our client's organizational structure.

[00:30:56] Victoria McCurdy: It's chess, not checkers, right? We want to think about, from start to finish, what the proof of this claim looks like and what we're going to argue and what we need to prove it. I also consider what other groups or businesses will be interested in in the counterclaim. Is it going to be one of those claims that has a lot of media attention, are there trade groups or organizations or associations that are going to pay attention to this? And if so, are those groups going to be on our side? We want to make sure that if it is going to be in the public eye, that we have public support and we have support for, like I said, any kind of trade groups or organizations that might take an interest in it.

[00:31:43] Victoria McCurdy: So you don't want to take a flyer necessarily on a claim that is not going to be supported publicly, or by a lot of the interest groups that might have sway to the extent they attempt to intervene either formally or informally in the litigation. And you don't want to make the client look bad if they've got affiliates or subsidiaries that might take a different view on a type of discovery that you might need to prove your counterclaim.

[00:32:07] Victoria McCurdy: If that will ultimately benefit their business interests, that could be kind of an uncomfortable situation and an uncomfortable conversation with the client. So as Anthony said, it's a case by case analysis and all of these factors play into that.

[00:32:21] Anthony Argiropoulos: Victoria, there are two things that you said that I just want to respond to because I think they're very important and I'm glad that you said them.

[00:32:28] Anthony Argiropoulos: And the first is discovery. Because when you make an affirmative claim, when you're the plaintiff in a case or a counterclaimant in a case, you are opening a new dimension of discovery. There's new territory to be explored and that territory relates to, involves, concerns, otherwise references your claims and anything that could connect to those claims. So you don't want to be in a position where, you know, by wanting to be aggressive and press a counterclaim that you think could be valid or, you know, or could have some play, that you inadvertently have shot yourself in the foot.

[00:33:20] Anthony Argiropoulos: Because now you're going to be on the receiving end of all sorts of financial discovery, whatever the case may be. And if you have a client or, you know, that has subsidiaries, affiliates, has your claim now brought those affiliates into this suit? Whether directly as parties, necessary parties, for instance, or as potential targets for discovery? So you have to think about that.

[00:33:45] Anthony Argiropoulos: And I'm glad that you brought that up because so important when you're dealing with the types of clients that we deal with, sophisticated, large clients who are, they're not just playing checkers. They're playing three dimensional checkers and they're looking ahead to the board that's two tables down from them. And the other thing that needs to be said is that, when I say just because you can do something doesn't mean you should do it. Of course, that relates to tactics and strategy. But it relates to something larger as well. Lawyers have an obligation not to advance frivolous claims.

[00:34:27] Anthony Argiropoulos: The claims that you make need to be supported in fact. The claims that you make need to be supported at law or, you know, you have to have a good faith basis to believe that they'd be supported by an extension of the law. So you have to be careful. You don't want to be aggressive for the sake of being aggressive.

[00:34:48] Anthony Argiropoulos: You don't want to take action simply to increase the cost of another party. Those are issues, right? You can't, you know, you have an obligation to advance litigation appropriately, not to cause unreasonable delay, not to cause the unreasonable expense of another party, not to unreasonably burden another party.

[00:35:11] Anthony Argiropoulos: So you have to be thoughtful about these things as well, because the last thing that anyone wants is to bring a counterclaim or bring a claim that ends up being frivolous, being dismissed as frivolous, and then having a party seek attorney's fees for dismissing that claim. So, you know, those ethical components are something that has to be part of the fabric whenever you make a consideration of whether to bring a claim, when to bring a claim, and also how to advance defenses as well.

[00:35:45] Victoria McCurdy: I think that's exactly right. Even if there are ethical justifications for whatever counterclaim you might assert, and even if the discovery you need isn't going to negatively impact your client's affiliates or subsidiaries or interested non-parties, it's still important to make sure that you've got a good, solid claim that you think you can win.

[00:36:11] Victoria McCurdy: And of course, we only control a third of the process generally, right? We don't control the court. We don't control our opponent. So nothing is ever a foregone conclusion, but as best you can tell, is this a strong claim? It might be ethical. It might not negatively impact any interested parties or non-parties, but is it strong?

[00:36:29] Victoria McCurdy: And that goes to the credibility and integrity of not just you, the attorney, but also your client who hired you. And I want to cultivate the reputation that if I bring a counterclaim or if I assert a counterpunch, a non-traditional counterpunch, I want people to say, oh, she's serious.

[00:36:50] Victoria McCurdy: You know, I don't bluff, right? I make sure that I can back up and take to the mat every affirmative claim that I assert on behalf of clients. And I think that's so important when you're litigating because, again, it's all about who has the power and who has the ability to control the narrative.

[00:37:09] Max Cadmus: Earlier we discussed Taylor Swift's just devastating counterpunch. And that's been in the media. There have been other really impressive counterclaims and counterpunches in the media in recent years.

[00:37:23] Max Cadmus: Are you observing that clients are more aware of their ability to take an offensive posture when defending cases or to be a plaintiff rather than a defendant when they bring suits? Is that something that people are asking you more about now than they were maybe a few years ago?

[00:37:42] Victoria McCurdy: I think so, and maybe not in those specific terms, but this kind of dovetails with what we talked about in our earlier episode about the new playbook for depositions.

[00:37:54] Victoria McCurdy: This is not your mother's litigation, right? I mean, when you have a claim asserted against your client, you're not just going to be reactive. We use things like depositions to be very proactive and tell our side of the story, whereas historically that wasn't always the case. And similarly with counterpunches or counterclaims, we do hear clients say, well, you know, how can we be on the offense or what can we make them do?

[00:38:21] Victoria McCurdy: Especially if they get served with a ton of written discovery that's very tedious and annoying and perhaps intrusive and maybe, you know, is a little bit broader than the scope of discovery under the applicable rules. Clients very often say, well, how do we respond to this? Not just because we have to, but how do we make them suffer too?

[00:38:41] Victoria McCurdy: And so I think that's where the whole discussion about what counterclaims, what counterpunches do we have? Does it make sense to assert them? This is not just sit back and let litigation happen to you. It's how do we steal the ball and score a goal with it?

[00:38:59] Anthony Argiropoulos: You know, very often we're approached by clients who are not happy with the manner in which their litigation is proceeding. Sometimes, I refer to these cases as distressed cases.

[00:39:38] Anthony Argiropoulos:

[00:40:00] Anthony Argiropoulos: Clients are paying lawyers a lot of money, right? A lot of money. And I think it's incumbent upon the attorney who's reviewing a litigation, who's being asked questions by a client, to find those areas and say, look, strategically, this is what I'm thinking.

[00:40:29] Anthony Argiropoulos: You know, tactically, this is what I want to do to implement what I'm thinking. This is how I intend to stage it. And that's what clients want. You know, that's what they need. We're not getting new clients coming in and saying, hey, how can we play offense in response to this claim? That's something that we do automatically.

[00:40:57] Anthony Argiropoulos: It's part of our DNA. And we have clients, and this is a great point that Victoria makes about what the marketplace’s perception is.

[00:41:27] Anthony Argiropoulos: We have clients that opposing parties know, maybe this isn't a fight that we should have because those clients are going to be extremely aggressive. They are going to play offense from the very start. Every time a letter comes in, a motion is filed, it instills a sense of dread. What is this?

[00:41:56] Anthony Argiropoulos: What are they doing? And that's called smart litigation, right? And I think it's incumbent upon, you know, the attorney who's handling the matter to advise the client in that regard. That's what I'm seeing, Max.

[00:42:11] Victoria McCurdy: In the words of Taylor Swift, I knew you were trouble when you walked in.

[00:42:15] Anthony Argiropoulos: Well played.

[00:42:18] Victoria McCurdy: That’s what we want to cultivate. I couldn't let you get away with quoting Taylor Swift by yourself, Anthony.

[laughter]

[00:42:24] Max Cadmus: Well, it must be exhausting always being the anti-hero, Anthony. On that note, thank you very much, Victoria. Thank you, Anthony. You can hear more on speakingoflitigation.com, YouTube, or wherever you get your podcasts.


About Speaking of Litigation

No business likes litigation. Lawsuits and trials can be stressful, unpredictable, and often confounding—even for battle-scarred business leaders. But they’re something almost every business must confront. The Speaking of Litigation video podcast pulls back the curtain for an inside look at the various stages of litigation and the key strategic issues businesses face along the way. Knowledge is power, and this show empowers executives and in-house counsel to make better decisions before, during, and after disputes. Subscribe to Speaking of Litigation for a steady flow of practical, thought-provoking insights about litigation from Epstein Becker Green litigators.

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