Sun Tzu and the Art of Litigation

The Essential Guide to winning in litigation

Litigation is a blood sport, a gladiatorial contest.

Each side names its champions who are ordered to fight to the death. The champions, outside the case, may be friends or, at least, not hostile to each other. In the combat arena, they are bound, by contract, custom and professional etiquette, to use all means - within the bounds of the law, the Rules of Court and professional conduct - to achieve the best result possible for their client.

Litigation is brutal. But it is also full of finesse and strategy. It is as much a mind game as a fight game.

The successful litigator takes care to understand his opponent, he knows what weapons to use and when. He also knows when to release some of the pressure. A full-on assault takes energy. There are often times when a litigator knows that he has an advantage and offers his opponent the opportunity to surrender.

Litigation is as much as, if not more than, an art as it is a skill. While technical ability is important, flair and flexibility and the ability to out-think one's opponent are the true strengths of the great litigator.

Litigation is not always, indeed is often not, a question of the total destruction of one's opponent. Often, a good result is to settle for something less than the maximum possible, to recognise when the cost of victory may be so great that it erodes some or, potentially, all of the benefits.

Litigation is a battle of wills. Often a litigator's greatest weakness is that which he considers his greatest strength. An over-confident, an arrogant litigator, one who has a belief in his own infallibility will risk failure when a more modest approach would be safer and may result in a better result for his client.

Litigation is a test of character. The character of both the litigator and his client. There will be times when surrender seems more attractive than to continue, no matter what the merits of the case.

Litigation is a test of intellect. A litigator needs to out-think his opponent in terms of facts, strategy and law, constantly thinking, questioning, testing hypotheses and alternative stratagems.

Litigation is a test of stamina. For the great litigator, the fact that he is an artist more than a craftsman means that he engages on an emotional level; his client even more so. Like all artists, the good litigator will find reaching his goal to be tiring no matter how rewarding it ultimately proves.

Litigation is a matter of honour for the good litigator. He knows the rules and plays to their edges, sometimes pushing them outside their perceived limits but believing that he is still inside the ultimate boundaries. This is how new law is made: by the reinterpretation of law and the rules by which those laws are enforced.

A litigator is a force for change as well as a force for justice. He is not only a brutal warrior but adept at working out how best to re-draw the way laws should be applied and a canny exponent of the arts of persuasion.

The litigator is a teacher and a constant student, he is a master chess player and, when needed, a ruthless thug.

But if litigation is war, a brutal contest, then justice has for millennia been portrayed as a lady. Like most women, Justice needs to be wooed and persuaded: rarely is a blunt and forceful approach the most effective. The litigator, then, is also - in the purest sense - a seducer.

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Nigel Morris-Cotterill joined an English law firm in his school and college holidays, starting at just 15 years of age.

From the outset, he demonstrated an aptitude for litigation, within weeks beginning to make - and win - applications in the County Courts of England and Wales. He made his first appearance as an advocate in open court at the age of only 16 years. He won.

In his own firm, Morris-Cotterill acted for the UK's largest financial institutions, major international corporations and for individuals, delivering the same standard of service to all.

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