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War in the Courtroom: The Five Dangerous Faults in Litigation

Litigation has many parallels to war. So, when I evaluate a new case, I sometimes look at it as planning for a protracted military campaign. In this regard, I have found Sun Tzu’s The Art of War to be most instructive.

While there are countless lessons to be drawn from that text, my focus will be on the five dangerous faults:

(1)    recklessness, which leads to destruction;

(2)   cowardice, which leads to capture

(3)   a hasty temper, which can be provoked by insults;

(4)   a delicacy of honor which is sensitive to shame; and

(5)   over-solicitude for his men, which exposes him to worry and trouble.

Tzu says that when an army is overthrown, one of these faults is surely to blame. Unsurprisingly, I have seen many cases lost as a result of these same faults.

I see recklessness at the beginning of a lawsuit, where parties make wild allegations immediately out of the gate. Not only do these claims rarely succeed, but making frivolous claims can damage your credibility with the judge, which can have long lasting (and potentially case ending) effects.

I have seen cowardice paralyze both attorneys and clients, who are so afraid of making a mistake that they end up taking no action at all. But, inaction can be just as damaging to your case as the wrong action, sometimes more so.

A hasty temper is perhaps one of the most common faults I see. Litigation can get nasty, but to achieve a good result, you must divorce yourself emotionally, so that you can view the litigation objectively and make the best decision in light of the facts.

Number four is pride. I have seen good settlement offers rejected because either the attorney or his client were too proud to compromise. If pride gets in the way of settlement, a party can often find themselves incurring exorbitant legal fees over months and years only to get a worse result.

Over-solicitude means over-concern. A general who is too concerned for his men will not commit them to a dangerous assault, even when it is tactically necessary. In legal disputes, there are no troops, but rather a proxy in the form of money. Litigation is expensive, but just as a great general needs to know when to risk the lives of his men, achieving a favorable result means being sufficiently detached to know when and where you must commit your resources to achieve your goals.

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