I’m not much of a gambler. Sure, I enjoy a game or two at the blackjack table, but beyond hitting or sticking, I don’t really know when I should split or when I should double down.
I do know that doubling down can be a risky move for lawyers. Although we are obligated to zealously advocate for our clients, the ethics rules don’t allow us to assert claims or arguments without a good faith basis in fact or law. Lawyers can sometimes lose sight of this, particularly if they learn after the fact that a position they have asserted lacks a good faith basis.
A number of firms recently learned the hard way that doubling down can have serious consequences. An appellate court reinstated a $39 million malicious prosecution case against Latham & Watkins stemming from a trade secrets case it brought against two former employees of its client. After the employees purportedly demonstrated that they had created the business plan at issue prior to joining Latham’s client, instead of withdrawing the claims, Latham double downed and created new claims against the former employees. The case was dismissed, with the court finding that the new claims lacked a good faith basis, setting the stage for the malicious prosecution claim.
Sure, we all want to win; but where the facts or law provide no good faith basis for asserting (or continuing to assert) a claim, don’t double down. Otherwise, you may lose a lot more than your case.
When should you double down? I’m tellin’ you, baby, you always double down on eleven.