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A well-known law firm of considerable size once proclaimed with great pride in its marketing materials that litigating against its attorneys was like facing a Mongol horde. And doubtless every litigation shop with more than a dozen lawyers has at least one copy of Sun Tzu’s The Art of War within its walls. Many attorneys find inspiration in military strategy and conduct litigation as a sort of war game. Given the extremely adversarial nature of litigation, it is no surprise the tactics employed by generals on the battlefield can yield results for lead lawyers both before and during trial. But some war stories teach more than just a path to victory, they provide lessons on how attorneys should conduct themselves at times when the heat of battle has burned away their gentler natures. My favorite story in this vein is the Shakespearean history, Henry V. The attorney advisor Scene II of the first Act opens with the recently anointed King Henry V weighing a dark decision – whether or not to wage war to secure his putative right to the French throne. Henry V has sent notice to the French King Charles VI asserting a legal claim by inheritance to several French dukedoms. And as Henry waits for what he assumes will be a negative response from the French, he consults with the Archbishop of Canterbury to determine whether his legal claim is sufficient to warrant these drastic measures. In lawyerly fashion, Canterbury regales the King with a learned, lengthy and somewhat novel reading of the French law of succession. Like many clients, the King hears but brushes aside this legal analysis and requests a straightforward answer to the simple question: “May I with right and conscience make this claim?” Canterbury’s unequivocal affirmation: “The sin upon my head, dread sovereign!” And indeed it is, for counsel’s responsibility to guide clients in asserting their legal rights necessarily draws then into questions not only about what is just, but also what is conscionable. Although the decision to go the war is ultimately the client’s, the advisor must have both the knowledge to determine whether the legal analysis is tenable irrespective of the client’s motive for requesting the analysis, and the courage to advise the client’s of the consequence of their actions. How not to respond to the demand letter Unlike fresh-faced King Henry, Charles has been long to the French throne. The French army is mighty, well-armored and funded with an enormous war chest. Like an established corporation faced with a potentially serious, but completely unproven, challenge from an upstart, the French had several potential responses to Henry’s demands. They could have ignored England, hoping its demands were not backed with any serious threat of force. They could have responded with a firm but diplomatic denial. Or, they could have stalled for years or even decades by attempting a negotiation that baited England with vague and insufficient denials and inadequate offers of money payments or ceding to England certain inconsequential rights and properties. Instead, the French chose the option favored by far too many misguided attorneys and their haughty clients- a biting and vituperative response dripping in contempt and slight regard. The overconfident prince of France, the Dauphin, sends his ambassadors with a response that mocks King Henry’s youthful dalliances by offering a chest of tennis balls to pay off the King’s claims. Henry, seethes with outrage but maintains his station. He announces his claim to not just French dukedoms but to the throne and rule of all of France and returns the Dauphin’s ambassadors with message of what his scornful response has wrought: And tell the pleasant prince this mock of his Hath turn’d his balls to gun-stones; and his soul Shall stand sore charged for the wasteful vengeance That shall fly with them: for many a thousand widows Shall this his mock mock out of their dear husbands; Mock mothers from their sons, mock castles down; And some are yet ungotten and unborn That shall have cause to curse the Dauphin’s scorn. (I.ii:285-297) Prior to the Dauphin’s scorn, Henry was on the fence about whether to assert his claim, both because the claim was potentially weak and unjust and for fear of a Scottish invasion while England’s relatively small army would be immersed in an offshore battle with the French. Although Henry would have probably made the decision to invade France in any event, the Dauphin’s impolitic approach steeled Henry’s will and made subsequent settlement impossible, “For we have now no thought in us but France, Save those to God, that run before our business.” Attorneys should take note that both the tone and content of your letters can have a drastic effect on their recipients and how they choose to proceed. Regardless of whether you or clients have genuine animosity towards your adversaries, as an attorney you must always question whether communications written on your client’s behalf truly serve your client’s goals. Attorney conduct In Act IV, King Henry walks in disguise amongst his men on the night before the battle at Agincourt and argues with common soldier Michael Williams about whether a malfeasant soldier bears responsibility for misdeeds carried out during the war, or whether instead the King is responsible for the sins of his soldiers. In the end all are agreed, “Every subject’s duty is the king’s; but every subject’s soul is his own.” To borrow from Shakespeare’s Roman tragedy, Julius Caesar, a firm’s litigation associates are the “dogs of war” let loose at the client’s cry of “havoc” and the filing of the complaint. We are the “blind and bloody soldiers” that King Henry would set on the guilty denizens of the town of Harfleur on his march to the French throne. And, like Henry’s soldiers caught in the throws of battle, we are often faced with moral decisions about how to conduct ourselves during the course of litigation. Some attorneys take the low road and engage in questionable behavior of all kinds, resting their conscience on the premise that they are advocates with a professional duty to take every action to further their client’s interests. But as Henry V teaches, it is the attorney’s responsibility to maintain a high standard of professional ethics while carrying out the client’s wishes. Ellisen Turner is an associate at the Century City office of Irell & Manella LLP where his practice includes intellectual property litigation and patent prosecution. You may reach him at [email protected]

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