The Art of “Litigation” War (Part II)

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.