Here we are again on the week of Thanksgiving. Accordingly, it’s time that we once again direct you to our 2010 Thanksgiving post entitled “Thanksgiving in 1810, 1910, and 2010.” Back then, in our early blogging days, we somehow unearthed a century old magazine article in which the writer, a resident of 1910, looked back 100 years and marveled at the incredible social and technological change that occurred in the previous ten decades. That writer also looked forward to 2010 and briefly speculated how we, as citizens of the 21st century, might look back at those who lived in his era 100 years before. That article struck such a chord with us, and it’s become a Turkey Day tradition for us. So, today, we remind you of it once again and direct you back to it 107 years after its publication. (That neat illustration above – and many others like it – comes directly from the 106 year old article.). Have a look, and let us know what you think.
In this installment of Abnormal Use‘s exploration of Sun Tzu’s The Art of War, we analyze the following tactics from “Attack By Stratagem,” the third chapter of the book:
Thus we may know that there are five essentials for victory:
- He will win who knows when to fight and when not to fight.
- He will win who knows how to handle both superior and inferior forces.
- He will win whose army is animated by the same spirit throughout all its ranks.
- He will win who, prepared himself, waits to take the enemy unprepared.
- He will win who has military capacity and is not interfered with by the sovereign.
Every now and again, we come across those who approach litigation with an ultra-aggressive, yet helter-skelter approach. While we appreciate zealous advocacy, these litigators often miss the mark on the most crucial component of litigation – obtaining a favorable result for your client.
Litigation is, by definition, adversarial. However, being adversarial need not equate to “fighting” every step of the way. It is imperative that we pick our battles. Focus on the battles that matter. Focus on the battles that you can win. Rather than wasting time on trivial discovery battles which necessitate expending time and resources that are disproportional to the net positive a “victory” will mean for your case, focus on the substantive matters. Spend your time in preparation. Researching the law. Preparing for depositions. Drafting dispositive motions. Readying your case for trial. Don’t develop a reputation with the court and your fellow members of the bar of fighting over the trivial. Develop a reputation for fighting over substance. People will take note and appreciate the fact that when you raise an issue, it has teeth.
When looking at the substance of your case, identify its strengths and weaknesses. Pick the battles that you can win and concentrate your resources on that front. If you have a case of clear liability, be up front about it and set your sights on damages. Acknowledge where the law might not be in your favor and shift your legal arguments to where it is. Judges and juries respect candor. They appreciate getting to the point and not wasting their time on unnecessary issues.
Once you identify the points that matter and the battles that you can win, your focus is clear and you know where to direct your resources. There are many things in litigation beyond our control. However, we can control our own preparation. Whether it be on a football field or a courtroom, the first step in winning any battle is in being more prepared than your opponent. When you walk into a courtroom, you should feel as if you know the facts and the law. Be more prepared than opposing counsel. The preparation will always shine through in your performance.
As mentioned, the outcome of litigation can never be known with certainty. However, if you focus on the points that matter, identify your battles, and properly prepare, you have put yourself and your client in the best position for success. In this position is exactly where you want to be when you put your case in the hands of 12 jurors whom you do not know.
Part I of The Art of “Litigation” War can be accessed here.
Part II of The Art of “Litigation” War can be accessed here.
As you may know, our firm, Gallivan, White, & Boyd, P.A. is very, very active in DRI. John Cuttino of our Columbia office serves as its president. Jim Dedman, the editor of this blog, currently acts as the liaison of the Product Liability Committee to the Annual Meeting, which is taking place this week! It’s the upcoming Annual Meeting we discuss today.
We are very excited for the upcoming 2017 Annual Meeting, which takes place this week in Chicago on October 4-8, 2017. Rest assured that we have planned a fun dine-around for the Product Liability Committee on the evening of Wednesday, October 4 (more about which below)!
Plus, DRI has put together a phenomenal line-up of cutting-edge CLE presentations (up to 12.0 hours) and networking events. This year’s speakers and special guests, include:
• John O. Brennan, Former Director of the CIA
• Eric H. Holder, Jr., Former U.S. Attorney General
• Jeffrey R. Toobin, Senior Legal Analyst, CNN Worldwide, and Supreme Court Expert extraordinaire
• Sandra L. Phillips Rogers, Group Vice President, General Counsel and Chief Legal Officer, Toyota Motor North America, Inc.
The Product Liability Committee will have itsdine-around on the evening of Wednesday, October 4. For more details, please contact Jim Dedman at firstname.lastname@example.org.
The Product Liability Committee’s CLE and business meeting will take place on the afternoon of Thursday, October 5th. Here’s the information:
· Jeffrey A. Curran of GableGotwals and Kevin Schiferl of Frost Brown Todd, LLC will speak on “We’re Not in Kansas Anymore: The Challenges of Trying Cases in Unfamiliar Jurisdictions.” That program will take place on Thursday, October 5 from 3:30 to 4:30 p.m. Following the program, we will have a brief Product Liability Committee business meeting to move our agenda forward for the coming year.
We hope to see you this week!
According to this News Alert, the Clerk’s Office of the U.S. District Court for the Middle District of North Carolina has posted some electronic filing tips for ECF users. You can read the new handout here.
How many of you are attending the DRI Annual Meeting in Chicago in a few weeks?
As you may recall, our editor, Jim Dedman, plans the annual Mecklenburg County Bar’s Halloween CLE each year. This year, it’s called “Halloween CLE III: The Law of Clowns, Ghostbusters, and Scary Movies.” That’s right; there is literally a component on clown law. You can learn more here.
Our favorite legal tweet of the week is one of our own, as we feel our colleague Lindsay Joyner deserves some additional recognition for being named one of Columbia, South Carolina’s Best & Brightest!
— Gallivan White Boyd (@GWBLawFirm) September 20, 2017
Who’s going to the DRI Annual Meeting in Chicago next month? We’ll be there, so let us know! In fact, next week, we will be posting a bit more about this topic, so stay tuned for more information about the DRI Product Liability Committee’s events at the Annual Meeting.
Rest in peace, Grant Hart of the band, Hüsker Dü. In 1986, the band released Candy Apple Grey, which featured the single “Sorry Somehow,” written by Grant Hart. It features our favorite rock lyric about subpoenas. Read more about him here.
Our favorite legal tweet of the week comes from the North Carolina Bar Association, a committee of which recently addressed the Oxford comma debate. Behold that tweet below!
— Joyce Brafford (@Joyce_Brafford) September 14, 2017
Our Charleston, South Carolina office will be closed on Tuesday, September 12, 2017 due to inclement weather caused by Hurricane Irma. Our Charlotte, North Carolina office and our Greenville and Columbia, South Carolina offices will be open as usual. We wish everyone a safe journey during these days of difficult weather conditions.
In this installment of Abnormal Use‘s exploration of Sun Tzu’s The Art of War, we analyze the following tactics from “Waging War,” the second chapter of the book:
There is no instance of a country having benefited from prolonged warfare. . . . In war, then, let your great object be victory, not lengthy campaigns.
In “Waging War,” Sun Tzu stresses the importance of curtailed warfare. As Sun Tzu aptly notes, “if the campaign is protracted, the resources of the State will not be equal to the strain.” The longer war is waged, the more resources consumed and the more lives lost. As such, prolonged warfare results in a smaller net benefit to be gained by victory. Such is often true in litigation.
It is no secret that plaintiffs and their attorneys often have more to gain by resolving a case sooner rather than later. Resolution of a claim early in litigation (or even pre-suit) benefits a plaintiff by putting money in his or her pocket earlier and cuts down on the amount of fees a plaintiff must reimburse his or her attorneys. Likewise, for the attorney, who is most often working on a contingency fee, an early settlement provides a certainty of recovery and frees up time to work on other matters. Certainly, there are situations in which an early resolution is not possible (i.e., a lack of a meaningful pre-suit settlement offer). Assuming there is a legitimate offer on the table, however, the net benefit of protracted litigation only to obtain a slightly better settlement or judgment may not be worth the risk.
While not as obvious on the surface, there is often little for defendants to gain by way of lengthy litigation. Any seasoned defense attorney can tell tales of cases that were ultimately resolved after lengthy litigation for a sum far greater than what they could have pre-suit. Those cases are usually ones in which the defendant was operating with its optimal leverage pre-suit (due to a preliminary understanding of liability and/or damages) only to see the price of playing poker rise as discovery called into question the facts or theories upon which the defendant relied. Similarly, there are those cases that ultimately resolve at the pre-suit evaluation, but only after thousands of dollars in fees were incurred. In either situation, the net benefit of litigation, at least from a financial perspective, may be negligible.
Certainly, there are cases for both plaintiffs and defendants that should be tried for a variety of reasons. Unlike Sun Tzu, we would not venture so far as saying that there are “no” instances of a party benefiting from “prolonged warfare.” In those cases, however, it is imperative that counsel and their clients be on the same page regarding the costs of “war” and the risks of battle. Inherent in every case is risk. There is not a good case that cannot be lost (or, conversely, a bad case that cannot be won). Litigators should never be fearful of prolonged litigation, including trial. However, they should always be cognizant of the risks and costs of protracted litigation when searching for that necessary “victory.”
Part I of The Art of “Litigation” War can be accessed here.
Our Charleston, South Carolina office will be closed on Monday, September 11, 2017 due to inclement weather caused by Hurricane Irma. Our Charlotte, North Carolina office and our Greenville and Columbia, South Carolina offices will be open as usual. We wish everyone a safe journey during these days of difficult weather conditions.
Once again, we turn to the world of music for news of curious litigation. For those unfamiliar with the Fyre Festival, the following is a synopsis:
The music event (from April 28–30 and May 5–7) is touting itself as “the cultural experience of the decade.” Though these islands are part of the Bahamas, this scattered string of pearls is way more barefoot and bronzed than cruise ships and coconut cocktails.
The Fyre Festival website explains its origins as follows:
Billy McFarland and Ja Rule started a partnership over a mutual interest in technology, the ocean, and rap music. This unique combination of interests led them to the idea that, through their combined passions, they could create a new type of music festival and experience on a remote island.
Reportedly, festival tickets cost $450 for a day pass and up to a $250,000.00 for a full VIP experience. Unfortunately, its organizers canceled the festival at the last minute, and hundreds of attendees allege that they were stranded on the remote island with sparse food and dangerously rustic accommodations. That sounds a bit more perilous than Woodstock, no?
Litigation, of course, ensued.
Famed Plaintiffs’ attorney Mark J. Geragos filed a class action lawsuit in the U.S. District Court for the Central District of California. The named Plaintiff, Daniel Jung, alleges as follows:
Additionally, the suit alleges that the problems were known before the information was disclosed to prospective attendees, but that the information was not disclosed in a timely manner:
It is anticipated that there will be at least 150 members of the class. The lawsuit seeks at least $100 million in damages. Presumably, the lawsuit will be hotly contested, but Fyre Festival organizers are promising that “[a]ll festival goers this year will be refunded in full” and that they “will be working on refunds over the next few days and will be in touch directly with guests with more details.” Aggrieved guests may be pleased to find out that “all guests from this year will have free VIP passes to next year’s festival.” Who knows how that turned out?
On May 7, the Plaintiff amended the Complaint, and no defendant has answered. In fact, it appears that there may be some issues with serving them.
The case is Daniel Jung v. Billy McFarland, et al, 2:17-cv-03245-ODW-JC, U.S. District Court for the Central District of California (Western Division – Los Angeles).
We at Abnormal Use are skeptical that a jury would be excited about awarding money to a 20-30 year old who has $250,000.00 lying around for VIP tickets to an island music festival, but maybe we are wrong. This could be the case of the century arising out of what could have been the music festival of the century.
We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a festive and restful Labor Day. We thought we would celebrate this day of days by featuring an image of the cover of Rush’s “Working Man” single, but apparently, that song, though epic, was not released as a single. So, there is no such image to post here! That said, we’ve elected to post the cover of the original score soundtrack for the cult classic, Office Space.
Over the years, on Labor Day, we’ve featured the covers of labor-related comic books, examples of which you can find here, here, and here. (While preparing this post, we did find a reference to the Kryptonian Labor Guild, but that just doesn’t seem right for today.).
Whatever the case, be safe on this holiday, and we’ll see you back here on the blog tomorrow.