Chapter C4
Rule 4 – Timing the Attack
It’s rare for the situation on the ground to be so asymmetric that your enemy is much weaker than you are. By and large, while you may be a little weaker or a little stronger, most warring parties are usually more or less equal. In any case, when you start a fight, it’s always good to presume that your enemy is as strong as you are. When you collide with your enemy, what is the chance that you will come out ahead? If everything is equal, you would be reasonable in assuming that neither of you will win. In that case, why are you wasting your time getting into a fight you know no one will win? There is a perfectly rational answer to this question. Let me take you to basic war theory.
For a start, when you start your war planning, you must ask yourself what it is you are planning to attack. Presumable, these will be targets that matter to either you or your enemy. Why should your enemy strongly defend something that he doesn’t care about, or worse, that doesn’t matter in the larger scheme of things? It would be a different matter if it is an important target but he neglects to defend it well because he doesn’t understand its value. Then again, why should your enemy strongly set up a defense for something you are not truly capable of attacking? It would be a different matter if your enemy fails to defend something you are truly capable of attacking.
The real trick though is to know what is worth attacking at what point time. War gaming teaches us that it is not in your ability to attack alone that gets you victory: it is in attacking with immaculate timing. Everybody has limited resources. If your enemy has ten forts to protect, chances are pretty good he doesn’t have the man power to protect all ten to the same level at all times. He will have to choose which ones to prioritize and which ones to take risks on with weaker defenses. This is pretty obvious most of the time. It is not at all times that your enemy has to defend everything. He only has to defend something when you are capable of attacking it and if it’s worth your while to attack it. So, your attack makes sense if, and only if, you attack something that matters, at a time when it matters, and your enemy fails to defend it at that very point in time when you attack it. As you can see, timing is everything.
To take the argument to its logical conclusion, we must always remember that no one is always invincible. There will always be times in a war when a warring army is vulnerable in one place or another. Such vulnerability does not matter at all if it is far removed from the theatre of battle. Becoming unconquerable is fundamentally about being strong when it matters because it is only then that your enemy can attack you. This is as true of litigation as it is of war.
If you have seen your share of war movies, you will immediately see the second issue here. Wars aren’t just about single stand-alone targets and your bloodlust: they are about objectives. Why do we attack targets? We attack targets because they help us achieve objectives! So far so good. The problem is it is very rare to be able to achieve an objective and win a war only by attacking a single target. You are forced to attack multiple targets. It is even more rare for any attacker to be able to attack all targets equally effectively at the same time. Forces have to be amassed and thrown at the target. Targets are usually attacked sequentially meaning one after the other. Very likely, you may not be able to attack the second target till you have successfully destroyed the first. A good example of this would be a second line of defense. If you are to attack targets sequentially, you then have to plan that sequences and you have to time your attack on each target in that sequence. You then have to make a complex plan. In this case, you don’t just plan the timing, but you also plan the roll out sequence in a way that gets you to your objectives.
Let us now return to a case we have already look at – the Metro Cable Case – and examine how the timing of the roll out was critical to victory.
The Metro Cable Case
Recall that the Metro Cable case had some unique difficulties because Metro had no control over four key elements of its own subsidiary (AP Cable). Yes, it had 51% of the equity but its JV partner, one Sai Reddy, held 49% of the equity. AP Cable’s board had three nominees – Reddy and two Metro nominees – but Reddy was the Managing Director and had complete authority to run the company as he chose. AP Cable’s accounts were fed directly to his personal desktop computer. AP Cable’s business was located in a building he had rented in his personal name and then sub let to Metro. He physically controlled the Head End equipment. He was the authorized signatory for all Bank accounts. He alone had complete knowledge of his market meaning the cable operators who subscribed to AP Cable’s service. He had excellent contacts in the city with men of influence, the local administration and the police. He collected money from Cable Operators and omitted to pay it to AP Cable. Metro had no control over the Cable Operators (i.e. its revenue source), the Head End (i.e. its manufacturing facility,), the Bank (i.e. corporate funds) or the local environment. Metro therefore had no ability to take charge of its own business of which it was a majority owner.
As the main war objective, Metro had four targets. It needed Operational control, i.e. control over the Board of the Company; Financial control, i.e. access to its accounts and revenue stream; Market control, i.e. control over Cable Operators and its revenue stream; and Product control i.e. control over its Head End. The war could not be won if it did not achieve success in all four of its targets. How was it to attack these targets in order to win the war? It was obvious that the whole plan had to be worked around the attack timing. Clearly, each material factor impacting the battle dove tailed into another factor, like a snake eating its tail thus:
- Metro could not secure the Head End but this was impossible unless Reddy could be physically removed from the premises. An acrimonious Board Meeting was required so that Metro could get him out of the office.
- Reddy could not be stripped off his executive powers unless the Board had proof that he had misappropriated money. This was impossible unless Metro could get to his personal desktop computer.
- Even if Metro physically took over AP Cable’s business, the police were bound to get into the act and Metro would lose control pretty quickly unless they created all the necessary company paperwork with Board Resolutions and so forth to hold on. They could only create the paper work if they successfully stripped Reddy off his executive powers.
- Control of AP Cable and its business premises had no meaning unless Metro seized control over the revenue stream. The only way to do this was to win over the Cable Operators.
- The Cable Operators could not be won over unless there was something in it for them. They could be approached only after Metro had physical control over AP Cable so that sops could be offered to them.
- Even if AP Cable’s business, Head End and customers was brought under control, a court could always interfere with this control unless Metro was able to get Cable Operators to confirm that Reddy had misappropriated money so that Metro was able to close the loop on the whole defalcation story to a standard of evidence a court would accept.
How was Metro to fix this jigsaw puzzle of interconnected pieces? This is the timing and order of the action that Metro decided to roll out after a lot of debate:
(a) Get Reddy of the office by calling him to a Board meeting at a local hotel;
(b) Take control of the office and get into his desktop computer;
(c) Transmit the Tally account statements to the Board members to prove how he had misappropriated AP Cable’s money;
(d) Use the Tally account statements to strip Reddy of his executive powers, co-opt another director, confer executive power upon this new director and take control of essential corporate assets and funds;
(e) Install this new Executive Director at AP Cable’s office and call the Cable Operators;
(f) Threaten the Cable Operators with recovery of past dues unless they were willing to acknowledge that they had already paid off Reddy;
(g) On the basis of the Board minute extracts, change all Bank operation authorizations; and
(h) Then prepare for litigation by having lawyers stand by at the local courts to prevent ex parte injunction orders.
This order rolling out the strategy was followed to the letter and we have examined these events in Chapter B2. That success was achieved was a result of immaculate timing.
The Metro Cable case reveals to us a fundamental feature of timing. While you may have many weaknesses, not all weaknesses are relevant at all times. You don’t have to address all weakness immediately or comprehensively on a global basis or try and plug all of them permanently. Weaknesses matter only when being weak helps the enemy and that is the point in time when you have to make sure you are not weak. If you want to win your legal war, you don’t have to be strong everywhere all the time. Even if you are weak, you can take steps that immediately make you very strong at the time when it matters. It’s all a matter of timing, and timing itself can be the single most key factor in a legal war.