Extract: Sun Tzu and the Art of 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.
There are those that argue that the conduct of litigation should be cosy, almost a team effort between opposing champions, that the hard litigator is a dinosaur. True litigators like those that adopt that position. They are easy meat.
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 war. It is ridiculous when litigators address their letters to their opponents to "Dear Andrew" or "Dear Steve." Are they litigating or arranging a date? It is essential, right from the outset, to intimidate one's opponent and, because his client will see the correspondence, your client's opponent. Put simply, outside the confines of the case, then be as chummy as you like. In the conduct of litigation, always, always be prepared to attack or defend as the circumstances require. And let your client see that you are his champion.
Litigation is as much, 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.
Many clients do not recognise that: some will claim that only a total win is acceptable, that it is a matter of principle. A good litigator therefore has to be able to negotiate with his own client, to explain the concept of a nett win. And sometimes, when the odds are stacked against his client, a litigator must explain the concept of minimising the harm of an inevitable loss.
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 outcome 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, in this way, a force for change as well as a force for justice. It is his role to identify where there are weaknesses or failures in the law as it is currently applied.
For this reason, 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. The Greeks worshipped Themis, a deity of minor grade but, eventually, one of the Oracles of Delphi due to her ability to prophesy the results of a decision. Often viewed as blind (hence the phrase "blind justice"), Themis' blindfold has been given many interpretations. My preferred interpretation is that she decides according to the evidence presented before her, without outside influence and the prejudices and inevitable injustice that such bring. In statues she bears a sword, which mythologists say demonstrates her ability to cut a clear line between truth and lies. The Roman equivalent, with a very similar history, is Justitia - hence, through the use of Latin in English, we have the word "Justice."
Like most women, Themis and Justice need 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.
He has many tools at his disposal. But the most important are his intellect, his ability to communicate and his fearlessness in pursuit of a just result.
He may command an army of assistants and secondary advisers. He is a general. Because litigation is a war. And those that succeed are those that apply themselves to the practice of law as an art and to the practice of litigation as a struggle both to survive and to defeat his opponent by whatever lawful and honourable means are at his disposal.
I phoned a friend.
"Jane," I moaned. "I've lost it. I have lost three cases in the past three months."
"Everyone loses sometimes."
"When did you lose before these three?"
"I don't remember: probably a year or so."
"And before that?"
"Another year, maybe"
"Nigel, you just don't get it do you? You've lost three cases in a year. The rest of us lose three cases a week. Get back to work and stop complaining."
About the Author
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.
Before starting his own firm, he worked as a locum in a variety of firms, from major City of London firms to one-man-bands in tiny towns, gaining exposure to a wide range of cases and techniques.
In his own solicitors firm, Morris-Cotterill acted for major financial institutions, major international corporations and for individuals, delivering the same standard of service to all.
He retired from full time practice in 1994 to concentrate on developing a money laundering risk management and compliance consultancy which grew into The Anti Money Laundering Network, an international group encompassing consultancy, training, software and publications.
He no longer practises but is available to assist law firms on a non-practising consultancy basis.
Morris-Cotterill is the author of "How Not To Be A Money Launderer: the avoidance of money laundering and fraud in your organisation" (reprinted 2011 and available paperback in e-book: see www.countermoneylaundering.com) and countless articles and papers including published academic research.