Litigation as War 2 - More Thinking About Stategy

In Litigation as War 1 - Thinking About Stategy, I wrote: "These questions are to find out your goals and what we have to do to reach those goals and how much you money and effort you want to put into getting to your goals." Today, I am borrowing from Deception and Settlement: The Application of Sun Tzu's Ancient Strategies of War to the Law to expand on these themes.

"A lawsuit, like any competition, is essentially a form of warfare. The strategies of prosecuting or defending a suit are much the same as those mustered on the battlefield. Victory often goes not to the party with the stronger case, but to the party that makes the best use of the process, understanding tactics and strategy."

Goals, got to know what you want from the lawsuit - settlement or trial depend on knowing this point:

Settlement driven by common sense and efficiency will achieve the best results for the client. This is best seen in personal injury litigation, where the more time invested in a case often means a lower recovery for the attorney, with little additional benefit for the client.

Many business litigators forget this point, in part, because in business lawsuits the parties do not limit themselves to the pursuit of compensation. Businesses also seek justice, punishment and a leg-up over their competitor. Generally speaking, business litigators also do not depend on settlement for compensation. They are paid hourly, often at premium rates. The motivation of some attorneys might be to keep the case going and avoid settlement.

While that is a good argument against the hourly fees paradigm, the client drives the litigation, too. Some clients think settlement is a sign of weakness. I say that depends on the terms of the settlement. Keep reading as both the original author's statement and mine are explained below.

This also brings me to my third theme: how much you money and effort you want to put into getting to your goals.

Sun Tzu advises against this purposeless destruction. Each of the steps taken in a lawsuit should have a goal of encouraging settlement, albeit on your terms. This goal should be at the forefront whenever discovery is taken, motions are filed, and meetings with the opposition are held. This may not assure that fees and costs will be limited. Rather, it means that when money must be spent, it should be to encourage resolution of the matter. If it does not, then one should consider choosing a more effective course.

This strategy should be pursued even when it appears that your opponent has failed to appreciate the benefits of settlement. If your opponent is bent on the destruction of your business at any cost, the skillful course is to encourage the opponent to spend frivolously. But even this is with the goal of exhausting the opponent and encouraging settlement. The important lesson to be learned from Sun Tzu, is that a mindless push for victory at any cost can destroy not only your opponent, but your business as well. (My emphasis.)

If you do not have much knowledge of history, you will probably not have heard of Pyrrhus or of a Pyrrhic victory. The phrase wining every battle and losing the war may mean something then. That is what we are talking about here - putting so much into a case that after trial the company has no profit in its success. Put more drastically, the "successful" litigation drives the plaintiff into bankruptcy. I cannot accept that a litigation client wants me to pursue a case to the point that my client becomes bankrupt.

Litigation as War 1 - Thinking About Stategy

I think some people think of litigation as needing no strategy. I cannot explain why they think so. Maybe watching too much Judge Wapner and his successors. Those television shows have as much reality to litigation as Jerry Springer has to civilized discourse. Perhaps people just do not understand that mere bluster does make for a successful case any more than its for a successful war.

If you are a potential client, I will ask a lot of questions about where you want to go with a case and about the facts and how much you want to want to put into the case. These questions are to find out your goals and what we have to do to reach those goals and how much you money and effort you want to put into getting to your goals.

Several years ago I had a client get into a snit over that last question. We parted ways over that very question. In that matter, the company looked to get $24,000.00. That could easily be eaten up by attorney fees. I am not averse to clients who want to spend as much as they will get back in a judgment but I do think clients need informing of the costs of litigation. If the client wants to pay me more than they will get back from the case, that is their business. My business is informing my client so that they can make the decision of telling me to go after the other party.

If you are a potential client reading this, then should you not expect to be informed of the risks and benefits of a case? Expect a dialog with this office, please. I freely admit my thinking on litigation strategy came from reading Sun Tzu's Art of War several times over the past twenty some years. This passage from The 'Trial Warrior': Applying Sun Tzu's The Art of War to Trial Advocacy captures my own opinion quite well:

...Most trial lawyers will likely identify themselves as a combination of two or all three conceptual models offered; however, the term “Trial Warrior” has a degree of verisimilitude: for the “zealous advocate”, The Art of War provides a blueprint for developing and executing a comprehensive client-focused litigation strategy....

I also strongly urge reading Machiavelli’s The Prince Meets Sun Tzu’s The Art of War. It does a very good job of describing how the mindset for litigation parallels that for war.

Electronic Discovery Resources

Electronic discovery poses one of the biggest - if not the biggest - issues in modern litigation. Here is a list of online resources dealing with the issue:

• Electronic Discovery Law
• Electronic Discovery and Evidence
• DennisKennedy.com
• DiscoveryResources.org