By: Of Counsel Lyndon Laird
In litigation, as in life, relatively few things are really important. Conversely, the vast bulk of things are completely unimportant. As a lifelong student of strategy in litigation and other competitive domains, I strive to find what is important and what will have the most impact in a given situation.
Beginnings, like pretrial decisions, are important. Venture capitalist Peter Thiel wrote in “Zero to One” that, “Beginnings are special.” Beginnings are special because they set the stage for what is to come. They both limit and enable subsequent events. They are hard to change. They are long-lasting. Think of the beginning of the United States—the Constitution. It’s very hard to change. It’s long-lasting–still in effect after 240 years! It both limits and enables what is possible in the USA.
In litigation, initial decisions and pretrial are the “beginning” that will have a long-lasting and decisive influence on what is to come. How do we ensure that the beginning of our litigation is optimal?
Shaping the encounter
Shaping the contours of the encounter to the extent you can is one of the highest forms of strategy. It transcends “hard work,” “determination,” and other Horatio Alger bromides. In the face of a transcendent factor, like shaping the environment, virtually everything else may be irrelevant. We shape the encounter with certain early decisions and actions.
- Choice of venue and court
These decisions are examples of transcendent ones. As Plaintiff, filing your wrongful death case in Beaumont, if feasible, may have 10x more value than filing it in Fort Worth. As Defendant, removing a case from State court to Federal court may be the right move. If the judge is a former partner of opposing counsel, and the judge consistently favors opposing counsel in pretrial rulings, as happened in a class action lawsuit I handled, a Motion to Disqualify may be in order.
- Choice of forum
This another preliminary and important decision. Do you have the option of arbitration? Arbitration and litigation have their respective costs and benefits.
- Choice of parties,
Sometimes you will have a choice as to who is in the lawsuit. As Plaintiff in a products case, for example, you may not want to sue the manufacturer, who has unlimited resources, has litigated the issues before, and will mount a scorched earth win-at-all costs defense to avoid setting a precedent. It may better to sue the distributor, retailer, installer, etc. They may or may not have defense and indemnity agreements with the manufacturer. As Defendant, you may consider a Motion to Designate Responsible Third Parties. Even an unknown party, such as a hit-and-run driver, can be named as a responsible third party. The more parties who are present, the easier it is to deflect liability from your client. (Tex. Civ. Prac. & Rem. Code 33.004). And additional insurance will likely make it easier to settle and will reduce your client’s dollar outlay.
- Dilatory motions and miscellaneous
These include special exceptions, motions to dismiss, Rule 193.7 notices of intent to use documents produced by opposing party, requests to preserve evidence, etc.
- Scheduling order
This is a big opportunity to shape the encounter to your own advantage. The smart litigator writes the scheduling order him- or herself and presents it to opposing counsel as a fait accompli. They will agree to a surprising bit of it.
- Ask for what you want, write the agreement, and get it signed
Asking is a time-tested and even Biblical key to getting what you want. Ask for what you want, write the agreement, get the other attorney to sign it, and file it with the court. Attorneys can pretty much agree to modify discovery and other rules to their liking, so long as the agreement is in writing, signed, and filed with the court. Tex. R. Civ. P. 11; 191.1.
- Motion to exclude experts
Experts can make or break either side’s case. Move to exclude or limit the other side’s experts. Or get an agreement to limit opposing experts, possibly in exchange for some concession that you make.
Seizing and keeping the initiative
Taking the initiative and being proactive helps to “shape” the encounter in ways favorable to you. They make the other side dance to your tune. They give you more options. If you keep acting faster than the opponent can react, he eventually collapses. (The “OODA Loop” pioneered by the US Air Force—observe, orient, decide, act).
Speed, surprise, and boldness are force multipliers. “Warfighting, The US Marine Corps Book of Strategy.”
Winning without fighting
Sun Tzu wrote that winning without fighting is the highest form of strategy. (The Art of War, 2500 BC). He wrote that the battle is won before it is ever fought. This happens through advance preparation, shaping the encounter, and convincing the opponent that resistance is futile through your bold action. Often the opponent will concede without a fight (settle favorably, etc.)