“War, huh, yeah — what is it good for?” sang Edwin Starr in the 1970s. I love that song but don’t necessarily agree with its message. Reading and thinking about history’s most famous conflicts teaches a lot about litigation, and therein lies war’s value for a modern lawyer. Here are some lessons.
Lesson No. 1: “Wars begin when you will, but they do not end when you please.” That’s Machiavelli in his “History of Florence.”He was right. How many times do corporate counsel hear a client say, “Let’s sue them; that will teach them a lesson”?
But once litigation begins, there’s no predicting when or where it will end. Litigation often takes on a life of its own. Like marriage, parties should not enter into itlightly. The one who ends up learning the difficult lesson is often the one who filed suit in the first place.
Lesson No. 2: It’s easier to start a conflict than to resolve it. Too often, litigation, like war, hardens positions and leads participants to demonize opponents. These attitudes, in turn, make peace harder to achieve.
At the end of an opposing party’s deposition, lawyers should thank the deponent for his courtesy and professionalism. At the start of a mediation, counsel should tell the other side that he will question their facts and their position, but not their motivation. (Dwight D. Eisenhower was asked how he handled all the competing personalities as commander of Allied forces during World War II. As recounted by historian Stephen Ambrose in Marlo Thomas’ “The Right Words at the Right Time,” Eisenhower answered, “Never question another man’s motives. His wisdom, yes, but not his motives.”)
The legal department’s role is not to make peace harder to achieve, but easier. Of course, one way is for lawyers to let the other side know that they will go to war if necessary, which leads to the next lesson.
Lesson No. 3: Fight your battle, not their battle. Why did David beat Goliath? David was getting ready to do battle by putting on a coat of mail and a brass helmet and wielding a sword. But David wisely said in I Samuel 17:39, “I cannot walk in these, for I am unused to it.” Instead, he picked up five smooth stones, and the rest is history. He decided to fight his battle, not Goliath’s.
Malcolm Gladwell explores this concept in a New Yorker article “How David Beats Goliath: When Underdogs Break the Rules.” Gladwell cites the work of Ivan Arreguín-Toft, a political scientist who looked at 202 lopsided conflicts, weak combatants against the strong, from roughly the past 200 years. The Goliaths, he found, won 71.5 percent of the time. That’s not surprising.
Here’s what’s interesting. Arreguín-Toft re-did the analysis, looking at those cases where the underdogs, like David, acknowledged their weakness and chose an unconventional strategy to counterbalance it. In those cases, the Davids’ percentage of wins zoomed from 28.5 percent to 63.6 percent. “When underdogs choose not to play by Goliath’s rules, they win,” Arreguín-Toft concludes.
Lawyers should think about this the next time they’re mapping out a litigation and trial strategy. Plans that accept personal weaknesses while exploiting unique strengths could result in the winning edge that leads to victory even in the face of a giant.
Lesson No. 4: The most adaptable, not the fittest, survive. Though popularly misquoted, Charles Darwin wrote that evolution was about the survival of the most adaptable, not the fittest. Victor Davis Hanson, in his book “The Father of Us All,” writes: “We forget that victory in every war goes to the side that commits fewer mistakes — and learns more from them in less time — not to the side that makes no mistakes at all.” People, and lawyers specifically, must adjust, or we will perish.
Davis writes about the American unescorted daylight bombing raids in 1942-43 over Germany. (At the time, my dad was a 19-year-old waist gunner on a B-17.) Hanson writes that raids were “suicidal.” The U.S. military learned from its mistakes, and by late 1944 it had improved the B-17s, with drop tanks for greater range, long-range fighter escorts, and refined tactics and ordinance.
Think about this idea from the military in conjunction with Darwin’s observation. After every engagement, the military writes an after-action report. The report is not meant to cast blame but to discuss what went right (and how to do more of it) and what could have gone better (and how to change that). It’s only just a few pages long. The in-house legal department should do the same for every litigation matter, which will allow it and the company to adapt to setbacks and succeed.
Lesson No. 5: It’s more important to be determined than to be expert. There’s a great chapter on the Battle of Gettysburg in Michael Useem’s book “The Leadership Moment: Nine True Stories of Triumph and Disaster and Their Lessons for Us All.”
Col. Joshua Lawrence Chamberlain was a hero of the battle. He was a college teacher who had not attended any military academy. He volunteered to lead a regiment from Maine. Though he had no officer training, he was assigned to defend and hold Little Round Top, which anchored the entire Union defensive line. He prevailed.
How did Chamberlain get his smarts? Here’s what Useem writes: “The answer, for Chamberlain, was disciplined self-study. . . . [O]nce in uniform, he devoured all he could on military strategy and battlefield tactics. He read, he asked, he observed, he listened. He learned his job on the job.” Hard work matters, and it matters a lot in battle or in trial. My 30 years of practice show me this: The hardest working lawyers are the most effective lawyers.
Lesson No. 6: Perfection is the enemy. It is June 1942. American intelligence learns that a large enemy fleet is sailing toward Midway. There is nothing but a decimated American Navy between the enemy and the West Coast. Then something remarkable happens, astutely described by Hanson in his great book “Carnage and Culture: Landmark Battles in the Rise to Western Power.” The Navy has only three carriers. One, the Yorktown, was badly damaged at the Battle of the Coral Sea and limps into Pearl Harbor on May 27. Experts estimate repairs will take a minimum of three months. Admiral Chester Nimitz gives an order: The Yorktown will sail within 72 hours. And, 68 hours later, it does.
Contrast this to the Japanese response. Two of its newest and most deadly carriers got their hair mussed up at the Battle of the Coral Sea. But Japanese commanders refused to let the ships sail because they were not in perfect condition. So, just four enemy carriers were sent into battle, not six. It made all the difference.
Litigation and trial work require, like the Navy at Midway, flexibility and an understanding that sometimes “good enough” is the best way to go. A lawyer needs to file an injunction complaint with a good-enough affidavit, not a perfect one. It is better to change an opening statement because of something the other side says than to deliver the perfect one crafted weeks before. To paraphrase Gen. George S. Patton, a good plan today is better than a perfect plan tomorrow.
And one final thought from Sun Tzu in “The Art of War”: “There is no instance of a country having benefited from prolonged warfare.” That’s true in war, and it’s true in litigation.