Chapter A1
Do you really want to fight a court case?
The great thing about being a lawyer is you always get a ringside seat for the best shows in town! For those who came in late, the early 1990s were years of incredible change. India ‘globalized’, leading the world to believe there was gold in this exotic land of snake charmers and painted temple elephants. Investors came in droves, only to run into our Foreign Direct Investment Policy. It was a grease ball script to beat them all! It allowed tens of thousands of desis to make money for nothing out of imaginary palaces of illusions. It also allowed people like me to make a great living out of this illusion. How our FDI policy was monetized is a story you don’t want to miss.
Up until 1992, India was a textbook case of a socialist License, Permit, Quota Raj. When Narasimha Rao decided to ‘liberalize’, Indian industrialists were incensed. “You controlled us for decades”, they said, “telling us what we could manufacture and how much and where and using what methods. Now that we are properly obsolete and don’t know how to be free, you want us to go compete with multinationals”! They were right, but India was bankrupt and the Government had no choice. They found the perfect socialist solution: why not create a new class of quota holders? The new FDI policy required foreigners to have local partners in vast ‘sectors’ of business. That created a class of legally recognized squatters on government approved manufacturing quotas! As a ‘corporate lawyer’ of the day, I got to write about one joint venture agreement a month. Five years later, I got to issue about a lawyer’s notice a month claiming breach of joint venture contract. Fifteen years later, I was still fighting cases over those contracts I wrote!
In a way, this was inevitable. Indians had vast experience in how the license, permit, quota Raj really worked. When the Government rationed out contracts, everyone with a contact ‘on the inside’ – politician father, brother, or illegitimate uncle thrice removed – grabbed a piece of the action and launched his entitlement plan. He then invites those less networked to supply the money and expertise to get the contract performed. ‘Local partners’ signed joint venture contracts and then waited for the foreigners to supply the seed capital, technology, business expertise, bank guarantees, indeed, even the local partner’s share of the funding! Why would we expect homegrown businessman Narayan Kini to be different?
As entrepreneurial spirit went, Kini was pretty good. He has a highway construction equipment manufacturing joint venture with the Americans, a machine manufacturing joint venture with the Koreans and a mining equipment joint venture with Subtek, a South African company. None of his joint ventures made much money but he made sure he kept total control over ‘his’ companies. He dealt exclusively with suppliers so he decided the price at which his joint ventures were able to buy goods. He also made sure he controlled the aftermarket. Bazaar gossips whispered that he had parallel supplies of fake spare parts flooding the market through the same vendors who supplied original components to the venture. Like the best piano players, Kini did a lot of five finger exercises, and all of them were in the jam jar. Net, net, Subtek’s Indian joint venture consistently lost money till its capital base was burnt toast. It was a matter of time before Subtek figured out his scam. By the time it did, Y2K was well behind us and India had a whole new ‘India story’ to sell. That’s when Subtek decided to take control of the venture.
Subtek hit the ground running. India’s time had come, they told Kini. The Indian market had now matured. They wanted to invest a lot more money to build an exponentially bigger business. Was that okay with Kini? On the surface, Kini took it well. He didn’t want to put in a lot of money but he also didn’t mind being a smaller part of a much bigger business. The partners began a new commercial negotiation. The good times didn’t last. As the dance progressed, it became clear that Kini didn’t want to terminate his five-finger scam. Quite the contrary, Kini had figured out a way to grow extra fingers.
He was pretty brazen about it. If Subtek wanted to buy land for a bigger factory, they must buy the land through him. He didn’t say what his upside was going to be! Subtek was most welcome to put more money into the Indian JV but he would like to maintain his proportion of the shareholding. Okay, said Subtek, you want to put in money? Nope, Kini retorted, you have to put in money for me as my money! It didn’t end there. If Subtek wanted his cooperation in expanding the business, they would have to give him complete management control. If they didn’t want him to manage the business, they could buy him out. Of course, buying Kini out came at a fancy cost! Subtek wasn’t stupid enough not to know when it was on the receiving end of an extortion scheme. It was time to cut loose from Kini and move on.
Subtek’s lawyers weren’t encouraging. India had something in its FDI policy called Press Note 1. This made Joint Ventures in India a lot like marriage. If you have an existing venture in India, you couldn’t start a new wholly owned subsidiary without the consent of your Indian partner. Kini had the ability to keep blocking Subtek till they paid him off. What could Subtek do but go find an Indian lawyer who was better at offering solutions than he was at blocking business ideas?
Subtek’s new lawyers didn’t see a problem the way Subtek did. There were two limbs to their solution. “What was an ‘existing JV’ in India” they asked? If a foreign investor terminates a JV contract for good cause, can it still be ‘existing’? Kini had breached many of his contractual promises to Subtek. Subtek was justified in terminating its JV Agreement with him. If Subtek did that, it would still have an existing JV in India? In a sense, the lawyers were right. Legally, treating a terminated contract as subsisting is in reality a license to the Indian party to break every rule in the book, violate every clause in the JV contract, and treat the foreigner any which way it pleases. Who can justify such a construction of the law?
The second limb of their solution was even better. What’s so unique to mining equipment? It’s stuff that digs out the earth, its stuff that transports the stuff dug out to the surface and stuff that processes the stuff that is dug out of the earth. The same equipment can be used to dig a road or railway tunnel. The same machines can be used to transport materials on the earth’s surface as opposed to underground. The same equipment can be used to process other materials. The only thing unique about mining equipment is that it is designed to work in restrictive spaces. It’s not rocket science: its design. If an Indian JV sets out to make and sell such equipment, it’s a specific design – indeed a specific model – it chooses to sell. It’s not as if a whole class of goods automatically enter some sort of holy cow list.
The Indian JV wasn’t licensed to make and sell all of Subtek’s models, products, offerings and services offered world-wide to its international customer base. Subtek has licensed the Indian JV to manufacture a limited range of specific models. Press Note 1 could only be applied to what the Indian JV was authorized to manufacture, not everything Subtek every did or could do. These authorized models were dated and would soon be obsolete. Subtek need not manufacture these same models in its new Indian subsidiary at all. It could bring in entirely new and different products. Yes, this new technology did do the same job as the licensed products but so what? A horse did the same job as a car but does that make a horse a car?
For sure, Kini had an argument or two on his side too. There are always two sides to every story, sometimes even more! That’s how lawyers make a living. From a purely commercial viewpoint, Subtek had no choice. Subtek could pay Kini a lot of money to avoid a legal war or it could set up a new factory and face the ensuing legal war. If you have to choose between giving money to your partner or your lawyer, who would you choose to pay? It comes down to numbers, doesn’t it? Would you rather pay 100 crores to your partner tomorrow morning or (let’s say) five crores to your lawyer for the next 20 years? Clearly, the lawyer costs a lot less because money tomorrow morning is worth more than the same amount of money paid over twenty years. Besides, you may end up settling the case in three years for a lot less money. Subtek identified a group subsidiary they had previously registered in India for an entirely unrelated business, re-assigned it to their mining equipment business, put money in it and got down to the task of building the factory to churn out new products.
If you are new to the legal world, it would be natural to ask if Subtek did anything illegal in picking up this group subsidiary and setting up a new factory. This is the mother of all irrelevant questions. It doesn’t matter who was right and who was wrong. This is something we learn as we mature in the world of business. If the law was black and white, we wouldn’t need lawyers to come down on different sides of the argument. Besides, people don’t necessarily only do what is legally beyond debate. They do what they absolutely must do to survive the environment and then find a way to interpret the law suitably. The best commercial lawyers are those who offer solutions: no one pays a lawyer to be told that his problems have no solutions. How would you feel if your doctor was like that?
We should stop just a moment here because this is basic to the subject of this book. I will repeat myself. Commercial compulsions drive business behavior, not the other way round. It’s a lawyer’s job to ‘find’ the right construction of legal provisions and make commercial decisions stick. Consider the recent Covid induced lockdown. The government told businessmen to pay all wages even as it went about killing the revenue streams of these businesses. That was fine for people with deep pockets. What about businesses who had no money to pay anyone? If they paid all wages, they would be bankrupt. What would you do in the circumstances: would you sell your wife’s jewelry to pay employees or sack your employees and pay a lawyer to defend you in court?
It wasn’t long before Kini swung into action. He attacked on several fronts. First, he invoked arbitration claiming breach of the JV Agreement. Next, he rushed to the local trial court, and asked the court to stop Subtek from constructing a new factory. Third, he went to the High Court asking the court to stop this violation of the Government’s FDI Policy. Subtek was ready with its own attack. Subtek asked a court to stop Kini from using its technology, logos and business know-how. It then filed two more cases asking the Courts to stop Kini from stamping the stuff he rolled out of ‘his’ factory as Subtek’s products. In a nutshell, six cases rolled out in four different courts in as many weeks in each corner of India and the airlines started to rock and roll.
This gorefest lasted two years. Like any contest between highly energetic players clashing before overloaded courts burdened with complicated procedures, the courts were unable to take any decision at all. The trial court sympathized with Kini but then found it didn’t have jurisdiction. In this time, the FDI policy changed again so the High Court didn’t have the time to waste on listening to Kini. Subtek didn’t do much better. Two years on, Kini cut Subtek out of the loop and continued to operate the India JV like he owned it. He also continued to use Subtek’s name and logo on his bootleg products. Naturally, the market had no way of knowing if these were Kini goods or Subtek goods.
As this expensive litigation slowly ground to halt in fruitless frustration, the arbitration became the way to go. In legal term, this meant that each party focused on persuading the Arbitration Tribunal to compensate them for the legal sins of the other. Wildly ambitious claims and counter claims were made. In a company with a paid-up capital of Rs. 1 Crores, both sides asked for compensation of Rs. 1000 crores or more. It was ridiculous. From the perspective of the contending parties, it was also perfectly rational and logical. Let me explain this.
Look at the psychology driving legal positions. If you file a case and the other side chooses only to defend the claim, it’s a classic win-lose situation. You may get a lot of money or you may get nothing. In either event, you will not lose anything. In turn, the other side may lose nothing, but then again, it may lose something. In either event, it will definitely gain nothing. So, you only have something to gain and the other side only has something to lose. When the Arbitration Tribunal decides the case, it basically has to decide if it will give you something or nothing. It doesn’t have to balance the claims on the other side. Very likely, it could “take a conservative approach” and give you half a win. The bigger your claim, the bigger your ultimate half a win!
As opposed to that, if both parties ask for a lot of money, how is the Arbitration Tribunal to decide the case? It could take the same ‘conservative approach’ and give to each party half of what that party claims. Practically, this means that each party is incentivized to make a claim bigger than the other party has. If you ask for a Mercedes, you may get a Maruti, but if you ask for a Maruti, what will you get but a rickshaw?
Now, if the Arbitration Tribunal does not want to take the ‘conservative approach’, its next best option is to decide the case on its merit. To do that, it needs to get deep into the case and burn a lot of legal acumen! That takes time, energy and motivation. It increases the level of skill each party needs to bring to the table, hiring better lawyers, preparing harder. In the bargain, arbitrators’ fees also rise proportionately. Damned if you do and damned if you don’t.
There is a third choice. The Arbitration Tribunal can choose to do nothing. You have heard the old Panchatantra story of the two cats who fought over a cake and ended up allowing the monkey to eat it all! The Arbitration Tribunal can keep the case in play, hearing after hearing, charging hefty fees in the process. Eventually, like the Cheshire cat, the parties get fed up and settle the matter amongst themselves, leaving the Arbitrator’s fees behind. Actually, this is a pretty good solution. Parties will always find a settlement that best meets their commercial objectives. Who understands better than the parties where their best interest lies?
Back in the day, before we amended our law to prescribe timelines to finish every arbitration in 2015, leisurely arbitrations were common enough, and not merely because the Arbitration Tribunals encouraged settlement. More often than not, the commercial compulsions of one or the other party favored stalling arbitration proceedings. Arbitration Tribunals were unable to, often unwilling to, steamroll over the parties. Let me illustrate this. In the beginning, Kini tried to stop Subtek from setting up a factory so that he could extort money from them. He didn’t care half a rat’s butt about a long expensive arbitration. He invoked arbitration for ‘legal reasons’ and then pretended it wasn’t there. The Arbitration Tribunal had no reason to push the pace. It was Kini’s arbitration and if he didn’t want it decided, who was to argue with that? At the time, Subtek didn’t want arbitration either. They wanted to establish their India factory so they could show Kini his place and send him off with a modest settlement. If neither party pushed for a fast arbitration process, what were the arbitrators to do? The arbitration drifted along for several years.
Kini’s objectives changed when he couldn’t get the courts to stop Subtek’s India plans. He now wanted to collect a lot of compensation through the arbitration. He then started pushing the pace of the arbitration. How hard should he have pushed? Litigation is like sailing in rough seas in a small boat. Subtek had a large counter claim. Kini could win big bucks, but he could lose as well. If the Arbitration Tribunal decided that Subtek was justified in terminating the JV Agreement, Kini would have to stop bootlegging his products as genuine Subtek goods. He may or may not make money at the end of arbitration, but as long as the arbitration ran on, he surely was making a lot of money selling those ‘duplicate’ products! It was a case of heads he was winning, tails Subtek would lose.
In turn, Subtek had no motivation to complete the arbitration quickly. If it won, it would receive some royalties and damages. If it lost, there could equally be a lot of compensation to pay. Royalties and damages would be nice to have but it would be a big blow for it to take a beating from this blackmailer of a local partner. Subtek prioritized a strong defense over a strong attack and that meant it had to set up a very sophisticated and expansive defense. It takes a lot of documents and witnesses to prove a huge and complicated defense. The process played out over many years. The clock kept ticking and the bills kept running. In this period, Subtek tried hard to find a settlement with him. It was in Subtek’s interest to settle the matter. Subtek would gain from a settlement but a decision by the Arbitrators could go either way. Kini had no incentive to settle the matter. He had everything to gain and nothing to lose. Kini dug in his heels: he wanted either an awful lot of money or the law could ‘take its own course’.
What view were the arbitrators to take? Arbitrators may or may not want to push for a faster process but could they deny Subtek a fair opportunity to prove its very substantial case? In the end, it took Subtek six years to present its case. Kini had already taken two years to present his case. Eight years after Kini asked for arbitration, the evidence part of the process ended. Parties now prepared to make their final arguments. It looked like the case would be decided in nine years.
Nine years is a long time in anyone’s life. You can get used to the good life. If the party ended and Kini didn’t win big time, his revenue from selling ‘duplicate’ goods would take a hit. It was not in his interest to complete the case. As the curtain rang down on this nine-year tango, you would have expected severe withdrawal symptoms. Would you be surprised if at this point, Kini pulled a rabbit out of his hat?
Kini found the rabbit he needed. When anyone files a case in court claiming legal damages, there is a high element of speculation in it. If you have your leg broken in a road accident, its impact will remain for a life time as you struggle to perform job after job to a standard that your employer requires. In many ways, your income level will bear the brunt of your disability. The law has a mechanism to compute the future financial value such injury and damage. It’s the same with breaches of contract. Both Kini and Subtek had computed their damages based on this kind of legally sanctioned speculation.
But speculation was now unnecessary. In eight years, the parties, their companies and the world of mining equipment had experienced financial successes and failures in the real world. It was now possible to accurately predict what would have been the result of either party honoring its contractual obligations instead of ending up in a dispute. Why should the Arbitration Tribunal compute speculative damages when it had a real chance to make a calculation based on real world figures and facts? Why not let Kini supply these facts? After all, these were ‘subsequent facts’ and the law allows parties to rely on new facts and subsequent data even after the case is filed. Kini went back to the Arbitration Tribunal. May he be allowed to amend his case to show to the arbitrators the actual loss he had suffered?
What do you think happened next?
I can offer you some alternate scenarios.
Scenario One: the Arbitration Tribunal heard this application and rejected it. First, it was too late to make this case. The parties had been in arbitration for a long time and everyone had every opportunity to present their case to their hearts’ content. It was unfair to ask for more time now. Second, when the law has a standard way of computing the future cost of a current legal injury, what happens the real world later becomes irrelevant. Face it, if you allow this kind of subsequent evidence, you need to allow it every few years in perpetuity till everyone is dead. For these reasons, the Arbitration Tribunal dismissed the application and proceeded to decide the main arbitration claim. Since Kini could not prove damages, it threw out his case, giving him nothing. This allowed Subtek to settle their dispute with Kini for a modest handout and the matter ended there.
Scenario Two: the Arbitration Tribunal decided that since Kini now had fresh facts to go on, he should be given the opportunity to prove the loss suffered by him. It allowed the application for amendment and Kini then had the opportunity to show his actual losses based on real world data and facts. On this basis, the case continued.
Which one are you betting on?
Here is one of life’s great lessons. To be ahead of the curve in the legal world, you have to be able to predict the other side’s behavior. What would your enemy do next? If you want to understand behavior, you have to understand incentives. Your enemy will always do what is in his or her self-interest to do. If you can analyze incentives, you can always predict behavior. When Kini filed his application to amend his claim, you know what his incentive was: he needed the case to go on as long as possible so that he could keep churning out his bootleg goods. Subtek obviously had the opposite incentive. They had never found a way to settle they case: they were ready to have it decided and be done with it. But then, the fate of a case is not merely between two parties. The case is fought by rules established by the law. It’s the law that decides how the case is to proceed.
More often than not, the law is on the side of proliferating processes. Parties had already spent a lifetime fighting this case. It was in the interest of parties that the case should be decided effectively and completely. If a party says it can add new material and complete the picture, why shouldn’t the law allow it to do so? Allowing a party to produce new material is not the same as accepting the value of that material. Arbitrations can measure the worth of new material only after they have allowed its production: how can they just shut out stuff that would be very useful to examine?
Here I must take a scenic side journey and digress into a related reality we should not lose sight of. In any industry and in any trade, litigation isn’t simply a contest between parties. There are other players in the game and they are front-line fighters. What role these front-line fighters play in the fate of any litigation can never be easily discounted. It may be in the interest of a party to end a case, but is it in the interest of its service providers?
Looking back at my career, I can think of many examples. I can think of several early-stage private power projects, and a few mining projects too, which ran into trouble and sparked off litigation. For years after that, foreign companies who had run these projects employed a law officer in India only to run this one case. If this case was lost, the law officer would likely lose his job but equally, if he won the case, he would become redundant and lose his job! Why would he not want the case to continue? In any litigation, several players make a living out of the discord. Why would anyone want the war to end?
Mercifully, this was not true in either Kini or Subtek’s case. This made no difference. The law supported the complete settlement of the real questions of controversy in the case. Crudely put, the law likes parties to keep beating each other up. In culmination, the Arbitration Tribunal allowed Kini’s application. The party was going to last another year or two!
This order allowing Kini to prove damages afresh set off another dynamic. If every claim must bring a bigger counter claim, every amended claim must also bring a bigger amended counter claim. If one party wants to bring fresh subsequent facts, the other party will also find a way to do the same. That is exactly what happened. Subtek now applied to bring new fresh facts before the Arbitration Tribunal. This would further enlarge its own claim. The Arbitration Tribunal now found itself without a choice. If it allows one party to bring fresh facts on the record, how can it deny the other party the same opportunity? Just as you would expect, any Arbitration Tribunal will simply throw up its hands and ‘let justice take its own course’! That’s exactly what the Arbitration Tribunal did in this case as well. Both parties were allowed to bring new evidence.
The whole can of worms was open once more and a fresh process started. Kini brought two experts and Subtek brought four! This process took another six years. By now, the arbitration had run for fifteen years. A decade and a half is a long time for business realities to reinvent themselves several times over. While the Arbitration Tribunal dealt with an increasingly proliferating litigation record stretching to hundreds of kilos of paperwork, Subtek established a profitable subsidiary in India and Kini made a fortune selling fake mining equipment under the Subtek brand. Everybody was happy.
At this point, I must take leave of this case, not least because the point has been made. What is the point?
If you think about it, there are several different things we can learn about legal wars from this case. Let’s try and serialize them.
- The legal ‘system’ is a purpose-built ‘solution’ to provide a dispute resolution service to its customers. It is based on certain assumptions and has a certain philosophical position. It also has a structure, an internal logic and rules by which it is operated. These rules do not necessarily suit the convenience of the fee-paying customer. You have to examine how comfortably you fit into the shoes of the person who is good at fighting legal wars.
The conclusion is inescapable: if you want to pick yourself a legal war, you need to understand these rules and see how ‘fit for purpose’ you are to successfully function in that environment. - You can start a legal war any time you like but once it starts, you will very likely lose control over it. The Justice Machine has several service providers, who are also stakeholders in the outcome of the legal war. All these people have something to gain if the case goes one way or the other. They also have something to gain or lose if it goes on forever. These people also have significant power to direct the course of the case. If you want to get into a legal war without thinking about how your case will be impacted by the agendas of these service providers, you may find that you may soon have no ability to determine what happens next but you will still pay the bills of these third-party agendas.
The conclusion is inescapable: you cannot start a legal war without a plan. - It takes at least two parties to litigate. Both usually have different objectives. What happens to your legal war depends as much on your objectives as it does on the objectives of the other. Your plans will not be implementable unless you have anticipated the objectives of your enemy and found a way to neutralize them.
The conclusion is inescapable: you have to have a war strategy. - Objectives are neither immutable nor fixed: they change as conditions on the ground evolve. Events on the actual field of battle determine what you do next. If your priorities change, you have to change your plans.
The conclusion is inescapable. To fight a legal war, you must have a clear sense of litigation tactics, how they are used, in what circumstances and to what end.
All this means that you really have no business to get into a legal war unless you have a clear sense of how the Justice Machine works and how you are going to manage it. You must also know how far you are prepared to go to get what you want and what price you are willing to pay to get it. After that, you also need to know how you are going to go about getting what you want. Who is going to get it for you? Who is doing what? What methods are you going to use to get it? What is your overall strategy? Finally, when you do start your war, how will you deal with the unforeseen knowns that will hit you in the face? What are the tactics you can use in such circumstances and which ones are actually implementable?
Everything comes down to anticipation, and planning. But who will do this planning for you? It could be left to the service providers but if you do that, you have a problem. If you outsource decision making, will you get decisions that are good for you, or will you get decisions that are good for the outsourced decision maker?
I have written this book assuming that the fee-paying customer has some interest in participating in the planning and execution of the service he is paying for!
Already, I think I hear some protests. How can a layman participate in a discussion about litigation planning and plan execution? How can he understand the games that get played in the innards of the Justice Machine? How can he navigate through seas he does not understand?
For inexplicable reasons, everyone and their super sexy pugs and poodles think that normal people are not expected to understand law or lawyers. Maybe lawyers really do come from another planet. Who else would wear a black coat in June in Rajasthan just to go to work? Compare this with another profession: doctors. A medical student studies for ten years before he can call himself a doctor. Still, everyone seems to know what to do if they have a high decibel sneezing solo or turn green at the gills. What they don’t know, their sisters-in-law will tell them. On any given day, a million Indians call up their local chemist without a prescription and rattle off names of all sorts of complex pharmaceutical brews and portions they want free home delivered. This stuff could kill them, but it doesn’t kill their confidence. Legal stuff in comparison is not a high stakes game. You could lose a lot of money, but unless you are accused of a crime, no matter what happens, you would likely get out of it alive.
I can feel your resistance! When lawyers need years of experience to understand legal strategy and tactics, how am I ever going to write a simple book that laymen will understand? Am I trying to explain Higgs Boson to Bar Bouncers? You may say this because you think you need legal training to understand strategies and tactics. Perhaps you think you need a technical understanding of the law and its procedures. Perhaps you think you won’t understand what I say because you are overwhelmed by the complex ‘language’ of the law. This I must admit: we lawyers do have a great vocabulary. I mean, 500 years after it became extinct in Europe, only lawyers, and the Church, still use Latin.
Perhaps you are confused by the way lawyers use ten words when two would be just great. But then this is true of every specialized field. Marketing managers don’t think, they ideate; auditors don’t correct account books, they audit and professors don’t read PhD thesis, they review and critique them. So what’s your problem if I give, transfer and yield unto you, irrevocably and voluntarily, absolutely and forever to have and to hold at your sole discretion, this knowledge, including but not being limited to its principles, text, context and application, with complete powers of alienation without let or hindrance from any person whatsoever …… instead of just telling you how to win a bloody case?
Once you get past our arcane language, riding the Justice Machine is not difficult. To drive a car, you don’t need to know how a car works. You just need to know which button, wheel and paddle does what and how they must be used individually or together to do what you want the car to do. It’s the same with computers. You press a button and the Word program explodes onto your screen, voila! It’s the same with the legal world. All you need is a simple set of rules; rules that tell you in simple terms when, where, why and how to go about winning. The central conceit of this book is that legal decision, like practically all other decision, can be taken by following simple rules, rules that follow from generic first principles. The secret is not to know the laws of the land; it is to know the rules of the game.
The only way for me to demonstrate this is to give you a handbook of simple rules. These rules should have widest application to practically any area of life where you need to use the law to get what you want. I see this book as a bridge, a kind of hitchhiker’s guide to the world of legal strategy and tactics. By employing these simple rules, I hope that you will be capable of taking decisions about all the guys you need to beat up in your personal and professional life. These rules will help you make decisions about corporate strategy in any environment of actual or potential legal conflict. In business, you could use them to more efficiently manage your counter parties: people you make contracts with, with your customers and suppliers, with Government and anyone else ‘out there’. Within your internal business environment, you could use these rules to deal with employees, employers, colleagues and friends in the system. Out there in the larger environment, you could use these rules to formulate action plans for ‘fourth party’ relationships such as consumer groups and green activists. The main thing for me is to make sure that I explain how a rule works by giving you an example. So when I suggest a rule, I will demonstrate it with a case study. I will give you the facts, the strategic options, the course adopted and the result achieved.
I will caution you about one key point though. This book is not primarily about fighting court cases. It is true that I am relying on court case histories to make my point. There is good reason for this. Any legal strategy, or tactic, is only as good as what comes out of it in court. But at the same time, we need to bear in mind that courts are the last resort in any personal or business conflict. Most of the fighting gets done before anyone reaches a court. This whole book is making the argument that you can win a legal war without going to court. This book is also arguing that you can resolve business conflict through pro-active action at the level of the Board of Directors, at Shareholders Meetings, in the market, in the corridors of government, through strategic position play and through the tactical conduct of legal strategy. It is true that the final test of any legal strategy is in a court but the best strategy is really one where the war is won without having to go to court. In fact, I have argued in this book that what happens to a case in court is decided long before the case reaches a court.
With this objective firmly in view, let’s move on and first look at the secret life of the Justice Machine and how it actually operates. You may want to brace up because before too long, you are going to have to painfully exorcise some ghosts that have long infested your mind!