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Litigation: What's Your Battle Plan?

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Like military conflicts, litigation actions have their own context and particularities. Trust litigation is different from bankruptcy litigation, which is different from real estate litigation. That said, most litigation embraces many more common elements than particularities, in the same way the phenomenon of warfare possesses a certain nature. All litigation starts with a plaintiff's complaint followed by a defendant's responsive pleading. Discovery ensues and the long, hard slog toward trial begins.

Litigators, whether representing plaintiffs or defendants, must begin with a plan. The uncertainties of litigation soon give resonance to Robert Burns' ode "To a Mouse:" "The best laid schemes o'mice an' men/Often go awry." Experienced litigators give due counsel to their clients that a litigation plan may not proceed according to plan. In other words, have plenty of contingencies up your sleeve, because you just might need them.

While the practice of civil law is far from the multifaceted terrors of war, litigation variables at times seem just as endless. Venue counts. Statutes count. Case law counts. Judicial temperament, experience, as well as calendar pressures count. Witnesses, their veracity or lack thereof, also count. Documents count. Funding counts. Most importantly, truth and justice should count. Any one of these variables might be the center of gravity for you or your opponent. What it costs to ultimately attain justice and have truth judicially embraced is predictably uncertain.

The genesis for uncertainty in litigation is put well by Mike Tyson - "Everybody has a plan until they get punched in the face." Litigation, like boxing, engages the mind in battle. A series of blows can hurt, change the course of the contest, or just be a part of an unseemly and painful process. Whether engaged in the periodic drama of litigation or the pain of the boxing ring, it is important to "read punches." Punch awareness is much less painful when accompanied by a defensive parry. Yet even when an opponent's punches are telegraphed, they might still be difficult to parry.

In litigation, as in battle, there are really two methods of attack - the direct and indirect. As Sun Tzu's The Art of War explained, these two in combination give rise to an endless series of maneuvers. Speculating on these maneuvers could also wear us out quickly if we lack the requisite focus for a sustained campaign. Thus was born the concept of zero-based thinking, where the best plan for success, in conquest or defense, is predicated upon the best knowledge you have at the moment.

On the battlefield and in the realm of litigation, plans often go awry. A "punch in the face" is a dramatic accelerator toward chaos and the necessity for adaptation. And plans, whether upset or intact, will give birth to new plans - and such plans, whether direct or indirect - give rise to an ongoing contest for advantage.

Successful litigation is generally fluid and dynamic, and for the strategic-minded attorney can play it out as a Chess match rather than another game of Checkers. Nonetheless, be ready for a punch in the face; both your flexibility and your preparation will help you to recover, overcome and win.

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