The Art of “Litigation” War (Part III)

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:

  1. He will win who knows when to fight and when not to fight.
  2. He will win who knows how to handle both superior and inferior forces.
  3. He will win whose army is animated by the same spirit throughout all its ranks.
  4. He will win who, prepared himself, waits to take the enemy unprepared.
  5. 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.

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