Case Strategy – What makes case handling strategic.
All Panel Solicitor Reports have a section headed Strategy. This is meant to direct lawyers to
think strategically about the cases they are handling. This talk is aimed to help you do this by
identifying the proper nature of strategy and how it applies specifically to civil disputes. This
will be done under the following headings:
i)
ii)
iii)
iv)
v)
vi)
vii)
Strategy and War;
Strategy in a civil setting; litigation strategy;
Strategy and the Indirect Approach – Sun Tzu and Supreme Cleverness;
Strategy and the Direct Approach – Ludendorff and Complete Annihilation;
Strategy and the Political Approach – Clausewitz, Ends and Means;
The Trinity; and
Lawyers as Strategists/Commanders.
Strategy and War
War is a realm of violence and hatred. Military forces aim to kill people and break things. It
is often (incorrectly) thought to lie outside the realm of law but and at the very least a very
dangerous and frightening thing to be involved in.
Strategy is one of the ways in which warfare is made more palatable/acceptable. In essence,
the offer of strategy is to make warfare more susceptible to rational control. At its most
general this implies some sort of limitation of the violent/irrational elements of warfare so
that it might serve some greater good or mitigate the harm.
The word “Strategy” derives from an ancient Greek title for a general or commander –
Strategos. Strategy is therefore what someone in command is supposed to do to bring a
conflict to a successful conclusion, ideally with the minimum possible cost in lives and
treasure.
Some characteristics of war strategy which make it particular as a way of thinking:
i)
ii)
iii)
iv)
v)
vi)
vii)
It is agonistic – that is exercised in opposition to another side (s) which may have
a competing strategy;
The circumstances in which it is exercised is never the same; every war is
different even if they have common elements;
Information is always incomplete;
Although strategy may aspire to be rational, the costs and benefits of fighting will
strike different people in different ways and so the basis of rationality in conflict
may never have any objective basis upon which different people agree.
Strategy is subject to both luck and judgment;
There are no outright winners;
Wars are never completely over; they leave a legacy; and may restart.
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Perhaps the high point of thinking strategy was a science was during the Cold War when the
idea of using nuclear weapons in the standoff between the USA and the Soviet Union was
subject to all kinds of intellectualising which was actually relevant to how events unfolded.
One of the reasons there was never a nuclear war was because neither side (despite a great
effort trying) could work out a way in which the use of these weapons would serve any
rational purpose, the benefits would never outweigh the costs.
Strategy in a Civil Context – Litigation.
Because strategy is associated with great commanders, significant historical figures, and the
like it has a certain glamour which results in the term being imported to contexts which are
different to the original. Thus you get:
Political Strategy; Business Strategy; Football Strategy; Dating Strategy and so on.
Soldiers/military officers are generally rather scathing about this sort of thing. They would
argue strategy cannot be the same thing when people do not get hurt trying to accomplish
it. When Tesco has a business plan to distribute its wares more efficiently it does not have
to worry about Sainsburys deploying squads of sales assistants with RPGs on the main roads
with orders to ambush the logistical movements of the competition. If so this would change
Tesco’s business strategy out of all recognition.
Despite this, it cannot be denied that strategy in certain civil contexts does have a lot in
common with military strategy. If you have a dating strategy you would be mad to tell it to
the enemy (opposite sex), it might even be imprudent to tell your friends for fear they will
spill the beans ….unless….unless…it was part of your very clever strategy to deliberately
disclose your game plan as a calculated gambit of apparent openness.
Litigation Strategy
In comparison with warfare, civil disputes and litigation actually shape up fairly well in terms
of having a comparable reference to strategy. This should perhaps not surprise because
historically litigation was developed as a substitute for the use of force in civilian
controversies. Some alternatives, for example trial by ordeal, didn’t catch on sufficiently
because they failed to appeal to the need to believe reason was employed. If you are a
witch being subject to a ducking it is no strategy to hold your breath as there is no choice in
it.
Some characteristics of litigation strategy which make it particular as a way of thinking:
viii)
ix)
x)
It is agonistic – that is exercised in opposition to another side (s) which may have
a competing strategy;
The circumstances in which it is exercised is never the same; every dispute is
different even if they have common elements;
Information is always incomplete;
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xi)
xii)
xiii)
xiv)
Although dispute strategy may aspire to be rational, the costs and benefits of
fighting will strike different people in different ways and so the basis of
rationality in litigation may never have any objective basis upon which different
people agree.
Litigation strategy is subject to both luck and judgment;
There are no outright winners;
Disputes are never completely over; they leave a legacy; and may restart.
The inevitable difference is that litigation is not supposed to be about life and limb, and
those that are rarely have both sides in jeopardy. Normally, litigation is now about money
purely, but remember money damages is a substitute for physical penalties executed in
ancient times. Further without wishing to say everything has a monetary value, money is
nevertheless exceptionally useful. Exposure to money damages does have the capability of
hurting, even if the pain will be different depending on the individual circumstances. This is
not unlike warfare. Historically some states were quite prepared to regard life as cheap
whereas others have thought it more precious. The same goes for money.
The Indirect Approach.
Because warfare is horrible, there is a great wish to avoid all the penalties which come with
it. Pacifism and renunciation of war have their adherents, but a weakness of their position is
what to do if you are attacked. Participation in war may not be voluntary or avoidable in
every case.
Another hope is to avoid most of the costs and gain the benefits of victory by a clever
stratagem. The idea is that by some, ambush, encirclement, or unanswerable checkmate the
enemy is persuaded to give up without really having to battle at all.
The military theorist who best encapsulates this indirect approach to warfare is Sun Tzu,
who lived during the Zhou Dynasty of China, a period of endemic warfare.
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Sun Tzu has never been more famous than he is now. His “Art of War” is known worldwide
and is the source of dozens of business and life style guides where the general idea is
getting the better of your adversaries by some act of faux Chinese Wisdom. The shorter
ones would not be out of place in a fortune cookie.
What makes him attractive is the something for nothing success he looks for is packaged in
simple and often paradoxical enigmatic sayings of apparent sagacity. For example:
“The supreme art of war is to subdue the enemy without fighting.”
“The general who wins the battle makes many calculations in his temple before the battle is
fought. The general who loses makes but few calculations beforehand.”
“Pretend inferiority and encourage his arrogance.”
“Victorious warriors win first and then go to war, while the defeated warriors go to war first
and then seek to win.”
“He who knows when he can fight and when he cannot, will be victorious”
“You have to believe in yourself” – Sun Tsu and the Art of Self-Help.
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But it is not just Sun Tzu, many have followed in his footsteps and many pithy sayings of
western commanders and statesmen could easily have been written first by the Chinese
guru.
“If you wish for peace, prepare for war” – Vegetius. Classic paradoxical strategy logic.
“Never interrupt an enemy while he is making a mistake” – Napoleon.
Overall, the thrust of it all is to exploit any opportunity, do the unexpected, identify some
weakness of the enemy’s position or forces and mercilessly take advantage.
Sun Tzu and Litigation.
Sun Tzu litigator will be a master of procedure:
He/she knows the White Book inside out;
He/she looks for interlocutory victories; summary judgments; strike outs; and
Is flexible as to jurisdiction;
Invokes costly procedures or litigation risks, only in the knowledge that the other side
cannot afford them, so that they are part of a deterrence and checkmate strategy.
The Sun Tzu litigator is not interested in a full test of the merits of a case and is seeking to
“win” outside the context of a trial. Advantageous settlement is a tool to allow a weak
opponent to retire in a state of submission.
The Sun Tzu litigator travels light. This means that losing propositions might be dropped in a
timely fashion, but there is also a tendency to disown responsibility for the outcome. Such a
litigator emphasises the role of adviser (like a Mandarin) and never becomes a servant to
the case.
The weakness of the Indirect Approach is:
It depends on cleverness. It is foolish to think you are more clever than most of your
opponents. Generally a success against the run of play only provokes more determination
and diligence from the opponent next time.
I once had a successful strike out application that seemed to cripple my opponent’s case,
but the result was I had to defend a very dangerous retaliatory strike out application by my
opponent and then an appeal and there still had to be a lengthy trial.
This shows that the Indirect Approach suffers because it does not bring the closure that it
seems to promise. It offers the illusion of winning but in fact further alienates the opposition
who do not think they have been fairly beaten and so they plot for a comeback in the longer
term.
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Further, it is difficult to generate any consistent strategy based on opportunism which may
work in one case but not the next. If you are supposed to do the unexpected, repeating it
will not work.
Ludendorff and the Direct Approach
Ludendorff is the manifestation of the opposite pole of strategy to that inhabited by Sun
Tsu. Instead of avoiding the horrors of conflict, Ludendorff looked them in the eye. He
thought war was not ever avoidable, that it had no purpose other than the complete
disarmament of the enemy, which required they be rendered defenceless. In Ludendorff’s
mind every element of society had to be subordinated to the requirements of military
victory because defeat could not be survived or was at least intolerable.
Ludendorff was the original theorist of the concept of Total War, an idea which rather
eliminated to possibility of Peace as even when there was not fighting there had to be
preparation for fighting. There is little reason for strategic subtlety in this conception.
Ludendorff simply envisaged massive attritional struggles with no exit short of the complete
devastation of the defeated societies.
While most western statesmen recoiled from this, in the era of Hitler and Stalin even
Churchill and Roosevelt could only complete by offering more efficient means of industrial
warfare than their enemies.
Ludendorff and Litigation
The litigator who follows Ludendorff is relentless in case preparation. Their aim is to build an
unassailable case in which every angle from which it might be attacked is covered and there
are multiple supporting positions. The loss of any one point would not materially affect the
solidity of the whole case. This is litigation by Scott Schedule where there may be dozens
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even hundreds of pleaded allegations. If half of them are lost in the crossfire there will still
be plenty left to finish the job. The defence equally has to be solid, since some proportion of
the Claimants case might succeed, you will only win on costs if you have a counterclaim that
over matches the claim. It can literally come down to the last allegation standing.
The Ludendorff Litigator is always fully focussed on the possibility of a trial and intends to
face that prospect with few qualms or doubts. The Ludendorff Litigator is also active in
harassing the other side throughout a case with the purpose of keeping them distracted
from their own case preparation. Opponents will never be underestimated either, they will
be assumed to be equally strong and astute so that no effort to gain even a slight advantage
should be spared.
The Ludendorff litigator will need to enthuse everyone else involved in the rightness and
importance of the case. Clients, Counsel, and witnesses will all have to share this outlook
and there may be great team solidarity. Doubts and dissenting views will be difficult to
manage.
The merits of a case are important to such a litigator, but there is a risk that the quality of
case preparation will be confused with the quality of the case. The Achilles Heel of this
method is that although victory will be especially sweet, there is no guarantee of winning at
all, yet victory is everything to this methodology. It risks losing sight of the “no winners”
truth.
The broader weakness of the Ludendorff approach to litigation is an inability to keep it in
proportion. The case that gets this treatment will seem to be the only battle worth fighting
when there are in fact others, now or in the future, in which the opportunities might be
better. The lawyer becomes in some sense a prisoner of the dispute; their professional
identities (and even more) may become tied into it. It will become very difficult to settle
when there has been so much commitment to such a cause. This will partly be because costs
will be commensurately large and costs themselves represent one of the biggest penalties of
this approach.
See BCCI Liquidator’s Case v Bank of England (2006) – Both sides opening statements lasted
about 80 days each.
The Ludendorff litigator risks indemnity costs when it all falls apart, but also forces their
opponent to match their commitment to the case
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Clausewitz and the Political Approach.
Clausewitz was in some estimations the only true philosopher of war. His great work “On
War” does not start by presenting warfare as an “Art” as translators of Sun Tzu have.
Clausewitz’s theories are rather nuanced and complex. It is very easy to find ideas
supportive of both the indirect and direct approach to warfare in his writing and the great
mistake of the German General Staff of the Ludendorff School was to only see one strand of
the argument.
Among the achievements of Clausewitz, were to provide a theoretical basis for why in war
things are always going wrong (friction); why war becomes extended in time as opposed to
an instantaneous trial of strength; and how asymmetrical aspects of warfare (such as the
difference between attack and defence) play on its characteristics.
However, Clausewitz is most famous for his statement that “war is the continuation of
politics by other means”. What this did was set up strategy as an instrument for the
articulation of political ends by military means.
Ever since this has coloured the interpretation of warfare and provided a basis for critical
assessment of whether warfare was working in the sense of achieving anything politically
worthwhile. It does not prevent there being argument over controversial campaigns, but it
does at least say what type of argument you ought to be having. It also explains why wars
are not all the same and that some are more limited than others.
Clausewitz saw the political dimensions of warfare as a manifestation of the relative
engagements of a “trinity”: government; people; and army on each side. How far each were
committed and influencing events would determine the nature of the conflict.
On a Clausewitzian scale we might make these assessments:
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WWII – a good war – the political stakes were at the highest level – almost any amount of
force was justified including the A-bomb.
WWI – more ambiguous – at least retrospectively it has been harder to convince everyone
the political stakes were quite so important.
Vietnam – controversial – there was no unity of purpose, political divisions opened up in the
US, and there was no agreement on the appropriate level of force to be employed.
Clausewitz and Litigation
To apply Clausewitz in litigation, the lawyer will be sensitive to the following:
i)
ii)
iii)
iv)
v)
vi)
The variety of litigation. Strategy has to be tailor made on a case by case basis. If
you always do the same thing it is not rational, it is following a programme. Two
identical cases with different quantum will be handled differently.
Will be attentive to instructions and have a proper dialogue with client as to
what they want (not necessarily accepting it at face value). Will be equally
interested to assess what the opponent wants as well.
Will monitor costs very closely, and be prepared to change strategy if the costs
position develops unfavourably.
Will have a lively sense of what can go wrong. Does not unrealistically expect
cases to be resolved quickly and at low cost and will try and minimise the drag
that inefficiencies introduced by their own side can induce. Knows that the
greatest weaknesses are self-induced and tries to save as much energy as
possible for attacking opponent’s case.
Is always alive to any opportunity to end a case on favourable terms.
Does not pursue cases for their own sake, but for the wider goals of the client,
and as far as possible avoiding irresolvable disputes with opponents. Recognises
the parties have interests outside the bounds of the present case.
Insurance backed litigation/case handling is set up to encourage you to act in a
Clausewitzian manner. Consider the Panel Solicitor Report format.
The Headings – Starts to get you thinking of the unique aspects of the case. Same boxes but
different answers.
Precis – keeps it succinct. However, important the case looks to you, it will only be a
footnote in the Great War between Insurers and Claimants.
Reserves – puts the focus on costs and resolution from the outset. You should never let this
out of sight. Reserves are where the means and ends of litigation are most clearly displayed.
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Background – there is tension between what is essential and what is merely interesting.
When this gets too long you have to ask whether it has value or whether you are just
drawing attention to your flair for investigation.
Policy Coverage – this is a reminder that you have more than one master and the interests
at stake may have more than one dimension. Policy coverage is indisputably a political issue
in this context, which will stretch your professional knowledge and abilities and ability to
recognise and manage potential conflicts of interest. Fools run in where angels fear to tread.
Never be afraid to consult a higher tier of command.
Liability – You must have a realistic evaluation of the strengths and weaknesses of the case
you have to bring. Proportionality of effort cannot be addressed unless you have an
accurate assessment of this and the clients will be misguided if you are wrong.
Quantum – another fundamental input into the proportionality question.
Case Strategy – This section will reveal whether you are trying to shape developments or
just going along with the flow. It will also reveal whether you are thinking ahead or just to
the next step. It should consider what the opponent might do as much as what you will do.
A proper case strategy will seek to persuade your own client that your action will have an
impact on the opponent. If the situation does not promise to improve, why would you not
settle now?
Recommendations – This should be more than just the reserves. It should be possible to
write clear recommendations, if you have a clear idea of what should be done.
Reserves – It is significant that they top and tail the report. Do not just say what the
reserves are, justify them, and alert insurers to future contingencies. Step increases of
reserves can be read to imply you never looked ahead.
Next Report – How frequently do you want to be in touch with the client? Just because
there is a regular reporting interval it does not mean it is right for this case. If you fail to
report, then the client is entitled to assume you have been taken prisoner by your other
work.
Please do not hesitate to contact – we are a long way from a computer being able to do this
work thankfully. You must affix a name to the conduct of the matter, to take the blame and
reap the glory. It is best if this is shared a bit.
Am I Napoleon then?
That depends. Napoleon was self-appointed, so it is up to you a bit. Beware though because
Napoleon had no one to blame but himself when good fortune abandoned him (apart from
the junior staff).
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Clausewitz helps here again with his Trinity.
War
Dispute
Resolution
Insurer
Government
Political and
Diplomatic
Decision
Maker and
organiser of
conflict.
People
Source of
passion and
protest,
support and
opposition
to the
conflict
Insured,
experts and
witnesses.
Army
Technical
capacity to
use force,
which may
overawe
others by
monopoly
on means of
violence.
Lawyers
Has the right
to give
instructions,
provides the
funding.
May be
distressingly
distracted by
other
priorities.
Needed to
provide the
evidence to
carry on the
dispute
successfully,
cooperation
required.
Have the
technique to
bring the
case to a
more or less
successful
conclusion.
Can create
dependent
relationship
on nonexperts.
Strategists can come from any of these groups. It depends partly on self-assertion.
Churchill in WWII was based in Government where his power was sometimes a little shaky
but was bolstered by his popular appeal. He did not command the Army but he had enough
political ascendancy to ensure the Army often (not always) did what he wanted.
Lenin seized the Government from a revolutionary group within the People. His only power
in the Imperial Army was the ability to foster its destruction. Lenin had little military power
until the Bolsheviks formed their own Army.
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Ludendorff commanded the German Army and side lined the German Government and
People until the war was lost and he needed someone else to take the fall.
Command in Litigation
In litigation, who is in command is equally an open question.
The lawyer can be no more than a technical functionary. In this case, they will dutifully
follow the strategy of others with no real input of their own. It is not always a problem to
take this line (and you have to respect your own line of command). It does not represent a
full service though, the lawyer can and should do more.
On the other hand, once the lawyer attempts to impose him/herself on strategy there is a
Napoleonic risk which is essentially a manifestation of irresponsibility. Whether the lawyer
wins or loses, someone else has to pay.
Therefore the lawyer needs to avoid a coup d’état but some degree of self-assertion is
necessary. The healthy method is to have a proper balance between the three parts of the
trinity. The lawyer has input into strategy, proposing and executing it, but leaving
responsibility to Insurers and Insured who must still give instructions and cooperation. This
is why continuous and constructive dialogue is the most valuable component of a successful
strategy. If you are not talking to the Insured and Insurers you will be unlikely to have a wellfounded strategy. It has to be constructive because obviously if you are just arguing with
each other, then it is only the other side who will gain. The lawyer will also likely get the
blame if a case does not reach resolution at the most appropriate time so he/she has a lot of
interest in guiding the matter to the required resolution. This only happens if there is some
degree of professional ascendancy over not just the opposition but your own side as well.
Professional ascendancy in the sense of having one’s advice followed in difficult situations
does not come from nothing. That kind of respect only happens if the ground work of deep
knowledge of the case is there. It helps if you are an old hand who can say you have seen it
all before and if X happens Y will certainly crack. However, when litigation is viewed through
strategic thinking it should be understood that X does not invariably lead to Y and, although
saying so, might be part of the strategy, the litigator needs a fine sense of how limited are
the general rules that they may expound.
Robert Lloyd, Caytons Law: February 2014.
Credit: This talk draws from the content of an MA course at Kings College, London,
particularly lectures on Strategy by Dr John Stone and his book Military Strategy: The Politics
and Techniques of War (2011) Bloomsbury Academic.
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