Chapter C0

Chapter C0

Litigation Preparation: Five action points.

Part B of this book is about that space between the fishing and the frying, or the kissing and the crying. Hopefully, if this book delivers all that it claims, it’s not the space between the living and the dying! Between the decision to fight and the commencement of litigation lies a critical period when you must prepare for what comes next. Legal wars are not started on a whim, they are not fought casually, and they are not won without great effort. If you have decided to fight a legal war, you have to grimly go about the business of preparing for it because once it begins, you won’t have the time for it. Part B is devoted entirely to the business of preparing for war.

In a sense, litigation planning starts even while you decide if you want to go to war. As you assess your capability – and we looked at that in Part A – you would probably have found that you had a number of vulnerabilities you needed to rectify. No doubt you would already have taken steps to fix those gaps in your capability. For example, if you found that you didn’t have the Balance of Internal Power because your local management was weak and indecisive, or the legal department won’t support it, you would probably have made some discreet management changes. Similarly, if the Governing Environment was hostile because public opinion was against you, you would probably have launched an effective media relations plan. Still, even though you have already addressed your weaknesses, there remain five processes you must independently roll out as part of your pre-war preparations. We can summarize these five processes into five simple action points as follows:

1. First, there is the planning process. Litigation last considerably longer than a big fat Punjabi wedding. It is not something you decide to do and then make plans up as you go along. Your whole approach has to be “project” based meaning that your planning process has to be totally objective, morally neutral, and result oriented. Your organization has to understand that you are doing this for specific objectives and that the business case for this cost and effort is good. Your organization has to understand that litigation is intended to defeat and damage, to annihilate, and to destroy. Your organization has to completely divest itself of all thoughts of fighting the good fight or complicate the challenge by mixing a moral construct into the noodle soup. Moral Legal war is an oxymoron. Litigation is not a game of moral vindication and it cannot be fought from a moral standpoint. Sometimes it can’t even be fought using moral means. You must recognize that everything that is legal is fair planning, what is not legal is not. In setting out to prepare for war therefore, the first Rule prescribed that every litigant must plan amorally. This matter is addressed in Chapter B 1.
2. Second, you must to recognize that every warrior both suffers and causes damage. Which boxer ever went to a fight expecting never to be hit? You must internalize the reality that fighting increases vulnerability. After all, the enemy too has weapons and it is quite capable of using them to inflict serious injury. Rule Two of litigation preparation therefore prescribes that you must prepare for war by increasing your defense capability to the point of invulnerability. We pick this up in Chapter B2.
3. Third, you must recognize that not everyone, and not every situation within an ongoing war, allows you the luxury of choosing whether or not to fight. Wars can be thrust on you, as battles can, and it is entirely possible to plan a defensive war. Rule three therefore deals with planning defensive wars, and we take this up one in Chapter B3.
4. Four, we look at the whole issue of when to attack. You may be ready for attack but even so, you still have to decide when to attack. Wars can be won or lost depending on when you attack because there are times when the enemy is vulnerable and times when the enemy is not. Rule four deals with planning attack timing and we look at this in Chapter B4.
5. Finally, you must clearly recognize that there are limits to what litigation can achieve. War planning is always about the art of the possible. Inherent in this idea of the art of the possible is a situation where you end up in a stalemate. This is another take on defensive litigation, where you fight to preserve, not annihilate, and where the whole endeavor is to preserve the stalemate. This issue is addressed in Chapter B 5.

With these initial words, we may now proceed to examine the art of Litigation Preparation in detail.