This is Part 5 of a multi-part series.  If you haven’t, be sure to read Parts 1, 2, 3, and 4.

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.

IV. Conclusion

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.

This is Part 4 of a multi-part series.  If you haven’t, be sure to read Parts 1, 2, and 3.

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.

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(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.

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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!

This is Part 3 of a multi-part series.  If you haven’t, be sure to read Parts 1 and 2.

In Part 2, I set the proposition that a lawyer is most like a politician and not a general.  Why?  Read on and find out.

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(A) Warfare is a subpart of politics.

War is a continuation of politics by other means.

-Carl von Clausewitz

Carl von Clausewitz – one of history’s great strategic thinkers – wrote this famous saying in his book, On War, that war is a subpart of politics.  Von Clausewitz, a Prussian, wrote his book when Prussia – along with the rest of Europe – was struggling to come to grips with the revolutionary approach to war brought about by Napoleon Bonaparte.

Before continuing, it is important to define “politics” and “war.”  Generally speaking, politics is when two or more people are attempting to exert some control over something.  That may be resources, such as  money or goods, or the other person, such as who will be doing household chores.  On the other hand, war – again, generally speaking – occurs when these parties turn confrontational.  That will normally happen because the party’s attempts to getting what they want through other means have failed.

While the parties are involved in the war, they are still attempting to gain control over something, which is why warfare is a subpart of politics.  The only difference is that they are now using violence rather than other means of persuasion.  Although they are using violence, each party is still essentially saying to the other, “I want you to do [X], and I’m going to force you to.”  The X is irrelevant.  It can be anything.  Either way, it is still politics.  Politics and warfare – regardless of the scale – is a battle of minds.

Think about World War 2 for an example of these concepts in action on a grand scale.  Before the war began, Germany wanted different regions it thought belonged to it, such as Austria.  In an effort to pacify them, England and the other Allied powers essentially let Germany take Austria.  Not content, Germany wanted more land and resources, eventually invading Poland.  In response, England, France, etc., declared war in an effort to stop the Germans.  During the war’s duration, both the Allied and Axis powers tried to resolve the conflict.  Eventually, the Axis nations had to accept the Allied nations’ demands.  For example, the US demanded that the Japanese unconditionally surrender.

World War 2 is just one example of millions throughout history of nations trying to exert their will on others through politics, using both persuasion, such as treaties, and violence.

Household chores are a perfect example of the same interplay between politics and war on a small scale.  At first, a parent or spouse will try to persuade their child or other spouse through negotiation.  They might say to the other, “If you do the dishes, I’ll dry them.”  Or, “If you do your chores you’ll get an allowance.”  But, when these negotiations fail, the parent or spouse may escalate their actions to get what they want.  An argument might erupt when one side doesn’t bend about who will dry the dishes or what-not and unkind words are said.  This interaction is still politics and warfare on a small scale that happens daily in homes throughout the world.  (While it is still nonviolent, it is still warfare and has the potential to be just as – if not more – harmful.)  Even in the act of saying unkind words, the people involved are still trying to get their way.

As already stated, the concepts occur on varying scales with differing consequences, but the concepts’ interplay remains the same.  Starting since time immemorial, peoples, tribes, and nations have been competing with each other over resources.  Usually, the parties begin with negotiations and then use warfare as a last-ditch effort.  But, how quickly the parties abandon negotiation and resort to violence is irrelevant.  Indeed, it’s common for parties to skip negotiation completely.  Either way, that is a reflection of each parties’ political means and strategy only and isn’t evidence of a difference between the politics and warfare concepts.  In any event, warfare is a political maneuver.

This is where the heart of the misunderstanding is.  Most lawyers don’t understand that warfare is only a part of politics and that the act of warfare itself is a political move.  Because of this misunderstanding, lawyers separate a case into “trial” and “everything else” and focus on the wrong piece of the representation equation.  Although they do harm the other party, they limit themselves and harm their clients because they view their job only as an intellectual competition over money.  (Money is the primary resource each side is competing over although others may be present.)  The politics and warfare equation is flipped to the complete opposite.  Negotiating – the primary means of attaining the desired outcome for nations – becomes the “alternative” and trial, which is the warfare aspect, becomes the norm.

The lawyer who understands the true relationship between politics and warfare reverses the two back to their proper place.  By doing so, this allows the lawyer to exercise more creativity in coming up with solutions that benefit all the parties  involved while preventing the hostility that trial brings.  Understanding the proper relationship between politics and warfare is the first step to establishing alternative dispute resolution as a primary strategy for a lawyer.

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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!

This is Part 2 of a multi-part series.  If you haven’t, be sure to read Part 1 first.

Now that the background for ADR has been set, let’s move on to the paper itself.

Alternative Dispute Resolution as a Lawyer’s Primary Strategy

By Dominic Andriacchi, Jr.

In the legal profession, alternative dispute resolution encompasses everything about a lawyer’s practice except the trial stage.  Negotiation, mediation, arbitration, settlement, etc. are all lumped into “alternative dispute resolution.”  Trial, on the other hand, is presumed to be the “normal” dispute-resolution method.  But, this drastically constricts the possible ways a lawyer can perform their job successfully.  Also, by reversing the focus from trial to ADR, this allows the lawyer to use more creativity in successfully resolving disputes to the benefit of all the parties involved.  Therefore, ADR should be a lawyer’s primary strategy and trial the alternative.

I.  A lawyer is most like a politician, not a general.

We say that lawyers fill many different roles when they take on a client.  Lawyers are counselors that do what’s in the client’s best interest (even if they don’t understand it), they are negotiators that negotiate on their behalf, and they’re advocates that try to persuade judges and juries to see their client’s side of the story.

Likewise, politicians fill many of the same roles for their constituents. (Although just because you are a lawyer does not mean you can be a statesman.  Cicero, arguably the best and most famous lawyer in history was a pretty bad statesman.  Well, as far as Julius Caesar was concerned anyway.)  Yet, we don’t view lawyers as politicians on behalf of a select constituency: their clients.

Instead, lawyers – and their clients usually do too – view themselves as generals.  They picture the iconic Napoleon sitting on his horse on a battlefield with cannon shells bursting overhead, musket fire whizzing all around him, and the screams of dying men wafting in the air.  “Yeah, that’s me!”  No, not quite.  Replace the horse with a leather chair, the battlefield with the computer screen, and the sights and sounds of warfare with insults and rushed filings and you may be close though.

Either way, it warrants two questions: (1) What does a general do? and (2) What does this say about lawyers?  Well, generals are to destroy the enemy and attain as much resources for the nation as possible.  Viewing lawyers as primarily generals and not statesmen would mean that a lawyer’s job is to do nothing but cause as much pain and damage as possible on the opposing party while taking as much as possible – usually money – for the client.  But, this neglects other roles the lawyer performs, and, more often than not, is generally not desirable.

Even the most justified wars throughout history, including the American Revolution, is nasty business for all involved.  Don’t think so?  Let’s see what one of the men primarily responsible for the Revolution had to say:

There was never a good war nor a bad peace.

-Benjamin Franklin

So how did our understanding get this way?  Well, it all stems from a fundamental misunderstanding of the interplay between politics and warfare.  But, through revisiting some of history’s best military theorists and strategic thinkers, we can fix our misunderstanding and see how a proper realignment between politics and warfare can positively impact a modern law practice.

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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!

This is Part 1 of a multi-part series.

During law school, I took a class titled “Alternative Dispute Resolution.”  Alternative Dispute Resolution (ADR) essentially covers everything except trial.  Lawyers – or law school professors anyway – break the legal process into two sections: (1) trial and (2) everything else.  The trial itself begins with the lawyer’s trial preparation – preparing their arguments and so-forth – and ends when the verdict is given, whether that is by a judge or jury.  The class I was in discussed the “everything else” aspect, which basically covered negotiations, mediations, and arbitrations.  The law school curriculum is almost entirely focused on trial and excludes the “everything else.”

(There is more to do during the “everything else” phase, such as discovery, but those topics are covered in Civil Procedure or Pre-Trial skills classes.)

In the class, students were to read, review, discuss, and act as a party’s counsel in different cases, events in the news, etc.  The professor was very interesting and would use examples from classical history to modern-day politics to show how ADR – like negotiations – impacted what each side would do.  Sometimes the parties in the examples would come to an amicable solution and sometimes they didn’t.

While the class was one of my favorite classes for a number of reasons, it was mostly because ADR combines many of the different subjects I’m interested in, such as history, warfare, strategy, and psychology to name a few.  For our grade in the course, we were to write a paper discussing ADR and our opinions about it.  Incorporating my knowledge in the various fields I’ve studied, I wrote a paper arguing that ADR should actually be the “lawyer’s” primary strategy and trial should be thought of as the alternative.  I received a book award in the course (the highest grade in my class).  In this multi-part series, I will post the entire paper, but with my own updates and revisions.

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!