In this part, I’ll discuss an example of using a political strategy in your role as a lawyer and conclude the series.
II. An example of using a political strategy in an alternative-dispute-resolution scenario to a lawyer’s and client’s benefit.
(A) Fourth Generation Warfare
We’ve already seen how warfare is a sub-part of politics in previous sections of this paper. Because of the similarity between a typical day in the life of a lawyer and a politician – which encompasses the realm of warfare – we can transfer the strategies and tactics that work for the politician to the lawyer.
A ready example is the principle in war known as “divide and conquer.” Essentially, this strategy first involves breaking down a complex enemy (whether by multiple opponents, diverse characteristics, whatever) into smaller components. Next, after breaking the opponent down, you attack and defeat each separate component on its own. Repeat the process long enough, and you’ve defeated your enemy. This process happens daily: lawyers break down complex legal theories into their “elements” and compare the facts of their case to the elements.
As time marches on, the strategy and tactics used in warfare has evolved along with it. For example, imagine a battle from the American Civil War. One line of blue uniforms line up across from a line of grey uniforms, they both shoot, they repeat the process, and someone eventually wins (an obvious simplification). Contrast that with the battlefield scenes in Operation Iraqi Freedom. They’re vastly different.
Each of the major changes in warfare are known as “generations” of warfare. You may have heard a lot about the current generation of warfare: “Fourth Generation Warfare (4GW)”. 4GW is the sort of warfare being waged in places like Afghanistan. The following is a simplification of the 4GW strategy and its counter-strategy (if you’re looking for in-depth discussion of 4GW, this is not going to be it.)
This generation of warfare is based on the idea of small, decentralized groups of combatants that unite under a broad goal against a common enemy. Essentially, what happens is that a small group unites, attacks, and then disperses and melts back into the populace. There is no identifiable leader; if one combatant is killed another can take their place without any (or minimal) loss to group cohesion. These groups can dislike their enemy for any number of reasons, not all of which are the same as the others. Basically, this is warfare between small groups of individuals and a big, well-known enemy.
The opposing force’s strategy focuses on winning the “hearts and minds” of the enemy’s members and/or the populace that gives them respite. The opposing force wants to separate the hold the groups have on the local populace. Once this occurs, the opposing force can separate the groups and destroy them: either through killing them or through isolating and alienating them from their peers. When this occurs, over a prolonged period of time, the opposing force wins.
Understand: the strategies and tactics that succeed on the battlefield trickle down to the society at large and are implemented throughout it. How often have you heard of businesspeople discussing Sun Tzu, or read business reports that use miltaristic jargon?
(B) Implementing 4GW and its counter-strategy in a law practice.
A lawyer’s strategy to guide them in a alternative-dispute-resolution scenario needs to be to win “hearts and minds.” The practicing attorney needs to understand that the other party is biased against seeing their side of the story and must win them over at least a little.
It’s the attorney’s job to see through the smoke and mirrors of their opponent to understand exactly what the opposing party’s interest is (rarely is it what they think it is) and not the position they are advancing. The attorney also needs to understand how the opposing party is going to try to advance their interests on them as well as the judge, jury, mediators, or arbitrators. Finally, the attorney needs to understand how they can win the hearts and minds of the arbitrators, mediators, judge, or jury members.
We can also see that this strategy applies throughout the alternative-dispute-resolution process as well as trial itself. With that being said, this strategy is more effective during the ADR process than at trial. This is because this strategy is a strategy for the long term. The repeated contact between parties allows a lawyer using this strategy to have more time to win the opponent over. Seeing as how a case can go on for months – even years – before resolution, that is a tremendous opportunity that should not be wasted. Best of all, both sides benefit, too.
However, this strategy requires a shift in the lawyer’s mentality because it requires that the lawyer must understand the opponent’s interests and develop a solution that best serves all involved parties. At no time, however, is the lawyer to not attempt to maximize their client’s gain – that is still a part of this strategy – there just is the addition of a cost-benefit analysis: how far can you maximize the upside while minimizing the downside (trial).
Using this strategy in a trial or arbitration setting, the emphasis is again placed on the outside hearts and minds of the decision maker. It would be foolish for the lawyer to not consider the impact their message is having on the decision-maker’s hearts and minds. Using this strategy, again, requires that the lawyer empathize and understand what makes the decision maker tick. From there, the lawyer then tailor’s their message to best persuade the decision maker to see and accept their side of the lawsuit.
The best part about this strategy is that its free and readily available. While its much more complex when see through the lens of a battlefield, it essentially boils down to empathizing with other people. Once the lawyer is able to empathize, see the opponent’s position or how the decision maker will decide, they can much more effectively persuade and advocate to their client’s benefit.
Remember, however, that this is only one example of one political strategy. Because of the similarity between a lawyer and a politician, nearly all of the strategies available to skillful politicians are also available to skillful lawyers.
By switching the emphasis from trial to ADR, a lawyer opens up a realm of possibilities for a successful outcome to their client’s case. The benefits to the client can be enormous. Further, the lawyer themselves uses a more creative, problem-solving, and collaborative approach to the legal practice, which, in turn, leads to a more fulfilling career. Therefore, because of the benefits that can be had by all, the lawyer needs to think and act as a politician and Alternative Dispute Resolution needs to be the lawyer’s primary strategy.