It has often been observed that litigation is war. The analogy is not perfect, but studying military strategy and tactics can prove fruitful for litigators. While many people often turn to Sun Tzu’s Art of War, for guidance in the applicability of military thought to modern business and litigation, I have a soft spot for von Clauewtiz’s Vom Kriege.
Carl Philipp Gottfried von Clausewitz; July 1, 1780 – November 16, 1831 was a Prussian soldier and military theorist who stressed the “moral” (in modern terms, psychological) and political aspects of war. His most notable work, Vom Kriege (On War), was unfinished at his death.
From On War:
I. Warfare has three main objects:
(a) To conquer and destroy the armed power of the enemy;
(b) To take possession of his material and other sources of strength, and
(c) To gain public opinion.
These three main objective align very closely with litigation. Lawyers engage in an adversarial contest in the context of the legal system in order to best the opposing party. Plaintiffs seek to recover awards; Defendants seek to deny them. And both sides seek to win the opinion of the judge, jury–and if the case is large enough–to spin, brand, and direct the media narrative.
von Clauewtiz also laid out four rules to follow when in pursuit of these objectives:
I. The first and most important rule to observe in order to accomplish these purposes, is to use our entire forces with the utmost energy. Any moderation shown would leave us short of our aim. Even with everything in our favor, we should be unwise not to make the greatest effort in order to make the result perfectly certain. For such effort can never produce negative results.
This rule, often referred to as “Total War,” states that if warfare is to be pursued, it should be pursued with all the weight and power that can be summoned. The same is true for litigation. Organization, preparation, and planning are of the utmost performance. Litigation cannot be “phoned in.” Nor does it follow a nice pre-set path. As has been noted many times at What About Clients:
“Complexity. Ambiguity. A messy problem. A “hard” thing. More and more employees don’t like it. They can’t deal with it. They want a “form”, a template, a program. But great work doesn’t have “forms.” Am terribly sorry about that. You will just have to think, and suffer through this, on your own. We hired you–all of you–to solve problems.”
When going into litigation, one must marshall all their forces to bare. Each argument, motion, and letter must be drafted with the intent to win. There is never room for “good enough.” You might win here and there on small matters and in small venues. But eventually you will come up against a party opponent who has adopted the mindset of “Total War” and you will be crushed. Only if you bring your full attention and effort into each litigation matter will you be able to put up a fight. Instead of being routed, you will engage in a battle of will.
II. The second rule is to concentrate our power as much as possible against that section where the chief blows are to be delivered and to incur disadvantages elsewhere, so that our chances of success may increase at the decisive point. This will compensate for all other disadvantages.
Organize for systemic and continuous exploitation of weaknesses in your opponent’s arguments, experts, and facts. Find where they are weak and concentrate your effort on maximizing your return.
III.The third rule is never to waste time. Unless important advantages are to be gained from hesitation, it is necessary to set to work at once. By this speed a hundred enemy measures are nipped in the bud, and public opinion is won most rapidly.
Surprise plays a much greater role in strategy than in tactics. It is the most important element of victory. Napoleon, Frederick II, Gustavus Adolphus, Caesar, Hannibal, and Alexander owe the brightest rays of their fame to their swiftness.
Strike hard, strike fast. While this is a common practice in the plaintiff bar, it is equally important for defendants. When a fully formed complaint and extensive discovery lands on your desk –which the client sent to you two weeks after they had been served with them–speed is of the essence. But there are times for repose as well. The plaintiff bar generally is poor at patience, preferring to file as soon as possible. But careful planning and investigation can yield dividends down the road. And defendants, especially corporate ones, have the advantage of time on their side in drawn out discovery that may weaken a plaintiff.
IV. Finally, the fourth rule is to follow up our successes with the utmost energy. Only pursuit of the beaten enemy gives the fruits of victory.
The trial is done. The jury has reached a verdict. You won! Congratulations! Immediately begin to prepare for an appeal. Don’t wait to get the Notice of Appeal 42 days from now. Even worse, especially don’t wait to prepare until you receive the opposing parties appellate brief.[hr]
If you have never read On War, it would be well worth your time to do so. It’s also not something to be read once and put onto the bookshelf to never look at again. As with most of the Classics, repeated readings lend new insight and deeper understanding of the principles within. The Classics are not meant to be read, they are meant to be studied.