August 01, 2016 article

    David v. Goliath: Representing the Underdog Against Big Corporations

    By Robert Zarco and Kaari Gagnon

    David versus Goliath: The biblical story of the “little guy” going up against the giant is not just a story; it is also a theme small firms often face in substantial and complex litigation. Indeed, representing the underdog against giant corporations is commonplace at our small commercial trial firm well known for representing franchisees against their franchisors in franchise litigation disputes. It is exciting work, but it is also hard work not for the faint of heart.  

    For a young lawyer, either as a solo practitioner or at a small firm, the thought of going head-to-head in litigation against a big corporation can seem daunting—and for good reason. It goes without saying that large corporations, such as well-established franchisors, seem to have unlimited litigation funds and use them to hire giant law firms with teams of attorneys to represent them—teams of attorneys who will do their very best to scorch the earth and bury you and your underdog small business client under mounds of documents and discovery disputes with the full intention of beating you both into litigation submission. This common practice should be anticipated and should not deter any attorneys, especially young attorneys, from representing the underdog against big corporations if given the opportunity.  

    At our small firm of 13–15 lawyers, representing the underdog against big corporations is not only commonplace but also whole-heartedly and fervently embraced. In fact, we thrive on it. The experience gained and the personal satisfaction of having helped your underdog client succeed against the big corporation is priceless and so personally rewarding. Thus, for those young attorneys going solo or joining a small firm, if given the opportunity to represent the little guy against the giant corporation, roll up your sleeves, get ready for a dog fight, and go for it.

    Before you do this, we leave you with a few practice pointers for when you are David going up against Goliath.

    Do Not Be Intimidated

    Although you may be a young lawyer, do not be intimidated. You are your underdog client’s advocate no matter who you are up against. Be confident! Expect to come across inflated egos, but they are just that—inflated. 

    Be Aggressive and Work Hard

    No one said going up against big corporations in litigation would be easy. It won’t be. Being aggressive in the litigation will require hard work and commitment.

    Always Be Prepared

    As in any litigation, you always want to be prepared. When facing teams of lawyers in the courtroom or in depositions, knowing the facts and laws of your case inside and out is crucial.

    Think Outside the Box

    Oftentimes your underdog client’s case may not, on its face, be a slam-dunk case. Think outside the box. The law is constantly evolving, and you may come up with that one, brilliant argument that changes the current case law and wins your underdog client’s case. See Scheck v. Burger King Corp., 756 F. Supp. 543 (S.D. Fla. 1991). 

    Don’t Lose Heart

    After reviewing thousands of documents (perhaps even hundreds of thousands of documents) and disputing every discovery issue there could ever be, it may be easy to lose heart and question what you have gotten yourself into. If you lose heart, though, you’re letting the big corporation win, at least mentally. Stay passionate, and remind yourself why you’re representing the underdog. Stay focused on your goals and objectives, and do not be distracted by the sideshows. 

    Learn from the Experience

    Finally, it is important that you come away knowing a lot more than you did when you first took on your underdog client. It will be hard not to, but making a conscious effort to learn from your experience will help you in your next litigation representing David against Goliath. 

    Keywords: litigation, solo practitioners, small firms, underdog, franchisor-franchisee litigation  

    Robert Zarco is the founding partner of Zarco Einhorn Salkowski & Brito, P.A., in Miami, Florida, and Kaari Gagnon is a partner at the firm.

    Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).