As a brief summary, in Part 2, I set the proposition that a lawyer is most like a politician and not a general. In Part 3, I used the strategic thinking of Carl von Clausewitz to discuss how warfare is itself a subpart of politics: “War is a continuation of politics by other means” as von Clausewitz said. Then, through understanding that war is a subpart of politics and just one tool in the politician’s toolkit, that therefore a lawyer is more like a politician than a general.
In this part, I’ll discuss how, as a politician or as a lawyer, if you go to war, you’ve already lost.
(B) War itself is a flawed strategy: if you go to war, you’ve already lost.
Those who win every battle are not really skillful – those who render others’ armies helpless without fighting are the best of all.
– Sun Tzu
Sun Tzu, another of history’s greatest military theorists, wrote about 2,500 years ago that the most skillful commander is the one who wins before a single battle. Why is this? This is because you’ve already lost when you choose to go to war.
You’ve already lost because battle itself is very costly. It’s a tremendous drain on resources. You have the obvious costs – killed, wounded, or captured soldiers – but also lost weapons, money, natural resources, etc. Further, even if a war is won without a single physical loss, there are still other costs, such as the lost time that went into producing the weapons of war or the emotional costs of mentally preparing for war.
Because we’ve already linked trial to war, we can extrapolate and say that by going to trial you’ve already lost, too.
Each trial is expensive in its own way and there are many variables that determine the cost of each trial. For example, the length of the trial, the number and experiences of the attorneys, any expert witness fees, the complexity of the legal issues, etc. But, that only takes into account the monetary cost of each trial. That analysis neglects the emotional and time costs of each trial, which are oftentimes just as much, if not more, monumental. Thus, by having to use the trial process to solve a dispute, the parties involved have already lost something. Often, there remains little to be gained. And, those are the considerations of the party that wins.
Let’s use a car accident as an example. For the sake of simplicity, say a victim in a car accident – the plaintiff – incurs $10,000 in damages that isn’t covered by insurance. That plaintiff sues the other driver – the defendant – for the $10,000. The case progresses normally and the plaintiff racks up a few thousand in attorney’s fees. Now, no matter what happens, the plaintiff can’t recover their full amount. And, most likely what will happen is that defendant’s lawyer will try to burn up whatever the plaintiff thought they could recover through attorney’s fees, such as through depositions or what-not. That piece of the pie gets smaller and smaller.
You might be thinking, “Why not just ask for attorney’s fees, too?” Yes, you can ask for it, but it doesn’t mean you’ll get it. Nor does the fact that the plaintiff sued the defendant guarantee a victory either. There are no guarantees in the trial process.
Nor can the judge or jury be as creative as the parties can be. One side will win, one side will lose. The judge or jury can’t come up with novel ideas. They can award money, they can’t make the defendant apologize and call it even.
Fortunately, this leaves a lot of value that can be gained and created through alternative dispute resolution methods. Indeed, the vast majority of cases are resolved long before trial, whether through plea bargaining or settlements.
The alternative dispute resolution stages are where the truly skillful lawyer shines. This is where the lawyer exercises their political skills – negotiation, people skills, deal-making, etc. – to their greatest extent. At these stages, the skillful lawyer can attain the most value for their client for as minimal emotional and monetary costs as possible while also successfully minimizing the costs incurred on the other party. (Sometimes it’s also important to not use scorched-earth tactics with the opposing side, such as with business partners or even between people in a small community.)
These stages are also where the attorneys can use their creativity and problem-solving skills to their fullest. Not only does this lead to better deals for everyone involved, it also has the potential to be a rewarding experience for the lawyer. In a profession plagued with poor job satisfaction, every little bit helps.
This may seem like common sense, but this understanding of the trial and alternative dispute resolution processes implies one striking revelation that is often overlooked: alternative dispute resolution is not a zero-sum game whereas trial is.
A zero-sum game is where the more one party gets then the less the other party gets. It’s a term that often comes up in economics. It’s also known as the Tragedy of the Commons.
An example of a zero-sum game is eating a pie. More pie for me means less pie for you. This is what happens at trial: either you win or you lose. Unfortunately, this is what most people think of when they think of negotiations. For example, if my injuries cost me $50,000 from slipping and falling in your restaurant but you pay me only $25,000, then we both lose. At the most, only one side can get any benefit. If the plaintiff has all of their bills paid then they eat more pie to the defendant’s detriment, and vice versa. But, this is a narrow focus of the resources at stake – money in this instance – and a limited understanding of the alternative dispute resolution methods.
Let’s take a lawsuit for a wrongful death an as example. In the course of the negotiations, one side offers to the other an idea of a scholarship at the deceased person’s collegiate alma mater. Further, let’s say the scholarship is in the person’s name but includes the words “sponsored by [the defendant].”
In this example, value has been created for both parties. The plaintiff has their loss recognized (there would probably be other damages paid as well) and the defendant can use this as an opportunity for a positive public relations statement, can save face, and can feel good about how they handled the situation. Both parties get some benefit, unlike trial where it would be an all-or-nothing outcome.
Moreover, the lawyers involved feel better about coming up with a creative solution that satisfies their clients. And, a happy client is one that pays their bills and returns for more services.
In any event, this scenario is a properly understood as a political process and not as a warfare-centric one.
Therefore, trial itself is a zero-sum game where the loser loses all and the winner loses most. By focusing entirely on trial, the lawyers involved are constricted in the amount of creativity they can use to solve their client’s problems. But, through using the alternative dispute resolution methods as a primary strategy to achieving their client’s needs, the lawyers involved can maximize their skillset to come up with a creative solution that creates the most value and leaves everyone as happy as possible.
That’s the end of this installment. Be sure to check back often, add this site to your RSS feed, and let me know your thoughts down in the comments on ADR regardless of whether you’re a lawyer!