Is Litigation War?
Some of my favorite quotes, strategies, and critical thinking come from a book I admit I have not read from cover to cover – The Art of War – a military treatise written over 2000 years ago. I believe the book is still required reading for West Point cadets.
The book is attributed to Chinese military general Sun Tzu. Tzu viewed war as sometimes necessary, but something that should be avoided at all costs. He wrote, “The true objective of war is peace.” Similarly, Abraham Lincoln, our 16th President, said
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.
If that’s your view of war, then I agree that litigation is war. In fact, as a trial lawyer, I would consider myself and my partners trained and highly skilled warriors for clients, though that may sound a little hokey. The question is, though, if litigation is war, then how are we to handle ourselves in it? Again Tzu helps us out. He tells us to:
Prepare by working hard –
He will win who, prepared himself, waits to take the enemy unprepared.
Ponder and deliberate before you make your move. He will conquer who has learned the artifice of deviation. Such is the art of maneuvering.
An unprepared lawyer will fail, no matter his or her intelligence or intentions. We must plan ahead, execute that plan, and outmaneuver the other side if we need to deviate from our plan.
Never underestimate your opponent –
He who exercises no forethought but makes light of his opponents is sure to be captured by them.
I can’t tell you how important this is in the legal world or in life. Many a time, I have been bitten on “hind end” (as they say down here) by someone or something that I ignored because I did not believe they were prepared enough or had the talent to beat me.
Make Your Points Clear to the Judge and Jury –
On the field of battle, the spoken word does not carry far enough; hence the institution of gongs and drums . . . banners and flags. Gongs and drums, banners and flags, are means whereby the ears and eyes of the host may be focused on one particular point.
The lawyer’s number one friend in the courtroom is what we call “demonstrative evidence.” That is, anything that demonstrates to the juror’s eyes what it is we are trying to convey, like the animations and accident reconstruction work we prepare for our trials. Also, as the quote says, using methods other than the lawyer’s words to convey the message works best. That’s why we use video depositions, recorded statements, and 911 calls to describe events and convey facts.
In closing, I think it worth pointing out that Sun Tzu did not believe in a “scorched earth” strategy. He wrote “to shatter and destroy [a country] is not so good.” Thus, while you might agree that litigation is war, our goal is not to destroy or shatter our opponent. Instead, for the trial lawyer, the goal should be to receive adequate compensation for clients, and, in certain cases, punish corporate wrongdoers for fraud or reckless conduct. In doing so, we can follow the rules of war, which, in my opinion, include professionalism and courtesy.