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Refusing to Accept the Given: Cultivating Legal Creativity

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Do you refuse to accept the given? This past week I was speaking with a fellow attorney who wanted to discuss how to proceed with the civil prosecution of a financial elder abuse case. The lawyer is the senior member of his firm - experienced, bright and thoughtful in the field of estate planning. But his professional opinions reminded me that the often-linear thinking required of estate planners does not fit well with the battle requirements of estate litigation.

When it came to estate litigation - an area where he has some, but not yet deep, experience - he accepted the given. My experience in law is that the most remarkable lawyers in our field don't necessarily accept the given. Great legal minds often travel apart from well-worn intellectual paths. And I've observed that some great litigators knowingly or unknowingly follow a system called the "OODA loop." The OODA loop refers to a strategy for action developed by military theorist and USAF Colonel John Boyd.

Boyd's decision cycle is to observe, orient, decide and act. Boyd maintains that using OODA allows us to quickly observe and react to unfolding events more rapidly than an opponent and thereby "get inside" the opponent's decision cycle and gain the advantage. A colleague of John Boyd, Harry Hillaker, put it well in "John Boyd, USAF Retired, Father of the F-16":

The key is to obscure your intentions and make them unpredictable to your opponent while you simultaneously clarify his intentions. That is, operate at a faster tempo to generate rapidly changing conditions that inhibit your opponent from adapting or reacting to those changes and that suppress or destroy his awareness. Thus, a hodgepodge of confusion and disorder occur to cause him to over- or under-react to conditions or activities that appear to be uncertain, ambiguous, or incomprehensible.

This sounds like a good approach to tough estate, probate and trust litigation. The estate planner would have our actions be entirely predictable - predictability that would assist our opposition in adapting or reacting to our strategy and tactics. The estate planner desires clarity - a clarity that in litigation is akin to popping your head above the trenches to see what your enemy is doing. Such head-popping is a recipe for disaster.

Now I won't reveal how we might make litigation strategy and tactics unpredictable. To do so would make them predictable. That said, I thought that I might share some experiences in my legal career where the OODA loop proved helpful.

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Observation

It was the mid 1990s. I'd recently filed a number of Fen-Phen (diet drug) litigation cases. It was still an early phase in the litigation. A number of plaintiffs' lawyers from around the country met in Denver to map out strategy. I was a member of that group.

The most serious and fatal effect from the use of Fen-Phen was its link to Primary Pulmonary Hypertension (PPH). PPH is a heart disease that has no cure and can cause lifelong debilitation and death. Leaders at the Denver gathering talked about PPH. With great confidence and authority, they declared that there were only 35 PPH cases in the country. I mentally observed that they were wrong - big time wrong. I was already representing 3 PPH clients and I'd only been involved in the litigation for a few months. I acted on my observation, and through information, referrals and expertise, I ultimately helped dozens of PPH victims. Had I deferred to the authority of the self proclaimed experts in Denver - "accepted the given" - I would never had represented and helped dozens of people and families suffering from PPH.

Orientation

"[O]rientation shapes the way we interact with the environment...it shapes the way we observe, the way we decide, the way we act.," notes Frans P.B. Osinga in Science, Strategy and War. Orienting is the way to build a strategy and employ it appropriately when facing uncertainty and unpredictable change.

1992. I'm 42 years old, the husband of a loving wife and father of four children. I've got a great family that loves me and that I in turn love dearly. We have many friends - great clients - and a great career. I've also got a brain tumor - news to me and to my family. We prepare for my surgery. It's successful, but I'm disabled for several months. The world is changing around us - we have uncertainty, unpredictable change.

We reorient. Family and faith are at the center of our lives. We persist. Things are not like they once were. A house that we built with great care is sold. Our children thrive, and we develop new avenues to our career. A medication that I take for the complications from the brain tumor almost kills me. It does kill others. The FDA orders the drug to be withdrawn from the market. That near-death episode inaugurates a new direction in my legal career - plaintiffs' pharmaceutical litigation. This is a part of my work that I proudly view with satisfaction. I helped many people, employed many people and helped to make a difference not only for my family, but also for the people that I served.

Decide and Act

It makes little difference if you've observed and oriented yourself to circumstances around you, but fail to make a decision as to how to respond to those observations and circumstances.

2011 - 2012. We've been defending bank guarantors against lender lawsuits over loans made before the beginning of the Great Recession. We vigorously defend and represent a large number of clients faced with financial destruction by banks. We do well, and our clients' damages are often limited and settled without a total economic breakdown. The litigation is winding down, and we are beginning to wonder what's next in our legal career.

It doesn't take long before I understand that the graying of my generation - the Baby Boomers - is creating a new demographic of legal effects and remedies. How do Baby Boomers and their parents protect themselves from estate, trust and elder abuse? I decide that this is an area of law that requires both focus and further development of our experience and expertise. We act on our decision.

Hackard Law now represents dozens of clients in estate and trust litigation during any given week. Our geographic practice is focused on several Northern California counties - among them Sacramento, Placer, El Dorado, Solano, San Joaquin, Alameda, San Mateo, Monterey, Santa Cruz, Santa Clara, Marin and Sonoma - as well as Southern California counties including Los Angeles, Orange, and San Diego. We've developed expertise in identifying and litigating complex undue influence cases. We've been strong advocates of the utility of both the Probate and Civil Courts in effectuating justice in estate-related cases.

OODA - Observation, Orientation, Direction, Action - is a continuing loop. The condition of disputed estate cases is never static. Those that don't understand this will expose themselves to even more risk than what's already characteristic of probate fights. Just remember, it's not always wise to "accept the given." One man's "given" is another man's opportunity - and advantage.

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