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Back to Basics

The young lawyer, having just finished reading a book on military history, likens a lawsuit to a form of warfare. The older lawyer tries to explain the two are not quite analogous even though both in a general sense utilize both “strategy” and “tactics.”

Marshalling those facts favorable to your side of the case. A “fact” just doesn’t appear magically, out of thin air. It has to be obtained through testimony or documents. Procedural rules of discovery, and substantive rules of evidence, govern the process. Your facts will win or lose the case for you, but what those facts are depends entirely on your workup and approach. In a serious leg injury case, you have a medical record where the family practice doctor notes in passing “increased sweating,” “bluish discoloration” and “cold skin.” Others may ignore such nonspecific findings, but you’ll be considering (and consulting experts to determine) whether your client now has “complex regional pain syndrome” arising out of the incident.[1]

“The Marine Corps concept for winning under these conditions is a warfighting doctrine based on rapid, flexible, and opportunistic maneuver. But in order to fully appreciate what we mean by maneuver we need to clarify the term. The traditional understanding of maneuver is a spatial one; that is, we maneuver in space to gain a positional advantage. However, in order to maximize the usefulness of maneuver, we must consider maneuver in time as well; that is, we generate a faster operational tempo than the enemy to gain a temporal advantage. It is through maneuver in both dimensions that an inferior force can achieve decisive superiority at the necessary time and place. Maneuver warfare is a warfighting philosophy that seeks to shatter the enemy’s cohesion through a series of rapid, violent, and unexpected actions which create a turbulent and rapidly deteriorating situation with which he cannot cope.”

Proving the invalidity of any defense, or potential defense. Most know generally what the defenses will be, but refuting all potential defenses requires real planning and forethought. In general, defenses are most readily proven invalid when they fail to comport with reality. You’re looking at probabilities, and gathering information so that your side of the case makes the most practical, and probabilistic, sense. Two cars approach an intersection at the same time; both say the light was green. Testimony of the defendant driver alone may not be enough. What “temporal” maneuvers exist? Traffic camera video, independent witnesses, on-scene debris, skid marks, cell phone records, interior/exterior property damage, black box downloads, reconstruction experts––piecing together other ways of establishing the chronology of events. What “spatial” maneuvers exist? Federal regulations which might govern the incident, state safety rules, other applicable policies and procedures––visualizing the regulatory space wherein the incident occurred.

“If the aim of maneuver warfare is to shatter the enemy’s cohesion, the immediate object toward that end is to create a situation in which he cannot function. By our actions, we seek to pose menacing dilemmas in which events happen unexpectedly and faster than the enemy can keep up with them. The enemy must be made to see his situation not only as deteriorating, but deteriorating at ever-increasing rate. The ultimate goal is panic and paralysis, an enemy who has lost the ability to resist.”

Proving the validity of your side’s position. There’s proof of a fact, and then there’s its persuasive impact. Why do some facts persuade and others do not? A fact is most persuasive when it explains reality reliably along with all other known facts. If there’s any inconsistency, disparity, or indeterminacy then others may fail to be persuaded. Many years ago, a successful verdict was achieved in an airplane crash case when, during discovery, a manufacturer’s safety recommendation was unearthed: “The documents included the manufacturer’s safety recommendation of a reduction of the electrical trim limit of the control component in the tail assembly, known as the horizontal stabilizer, from 4.4 degrees to 3.5 degrees. This recommendation was made by the design department of the manufacturer sixty days before the plane was delivered, but was not carried out.”[2] The manufacturer’s safety recommendation became a persuasive fact––it supported Plaintiff’s theory of liability as well as demonstrated prior awareness of the hazard.

“Inherent in maneuver warfare is the need for speed to seize the initiative, dictate the terms of combat, and keep the enemy off balance, thereby increasing his friction. Through the use greater tempo and velocity, we seek to establish a pace that the enemy cannot maintain so that with action his reactions are increasingly late––until eventually he is overcome by events.”

Protecting any hard-fought advantage gained. Those who study climate change use “vulnerability maps” to protect those areas most at risk for environmental harm: “Environmental vulnerability maps provide the location of fragile sites where the environment, people, or property are at risk due to potentially calamitous changes in the ecosystem that could result in injury, death, or other disasters.”[3] Creating your own “vulnerability map” for your case is a useful exercise since it shows what areas you will need to protect. You’ll need to protect not only areas of weakness but of strength as well.

“Also inherent is the need for violence, not so much as a source of physical attrition but as a source of moral dislocation. Toward this end we concentrate strength against critical enemy vulnerabilities, striking quickly and boldly where, when, and how it will cause the greatest damage to our enemy’s ability to fight. Once gained or found, any advantage must be pressed relentlessly and unhesitatingly. We must be ruthlessly opportunistic, actively seeking out signs of weakness, against which we will direct all available combat power. And when the decisive opportunity arrives, we must exploit it fully and aggressively, committing every ounce of combat power we can muster and pushing ourselves to the limits of exhaustion.”

Targeted specificity vs. unfocused generalization. Three or four areas of liability versus nine––the former is manageable, provable; the latter, not. “The law of diminishing returns states that in all productive processes, adding more of one factor of production, while holding all others constant (“ceteris paribus”), will at some point yield lower incremental per-unit returns. The law of diminishing returns does not imply that adding more of a factor will decrease the total production, a condition known as negative returns, though in fact this is common.”[4] There’s an optimal press-point to be reached in any process, including lawsuits. Adding more does not necessarily result in more.

“The final weapon in our arsenal is surprise, the combat value of which we have already recognized. By studying our enemy we will attempt to appreciate his perceptions. Through deception we will try to shape his expectations. Then we will dislocate them by striking at an unexpected time and place. In order to appear unpredictable, we must avoid set rules and patterns, which inhibit imagination and initiative. In order to appear ambiguous and threatening, we should operate on axes that offer several courses of action, keeping the enemy unclear as to which we will choose.”

Late night preparation. Older cautions the younger about being rude, angry, or ill-mannered, that sometimes less is more, that late night preparation and precision rather than bombast and vituperation will more often carry the day. That’s not to say, however, your questions and arguments should not have the ability to carry out their assigned task. Contested processes do share some similarities, but not as might be thought. It’s back to basics––beginning with each case.

Quotations from A.M. Gray, Warfighting: The U.S. Marine Corps Book of Strategy, Pgs. 75-79 (Currency Doubleday 1994)

[1] See Frank Birklein, Complex Regional Pain Syndrome, J.Neurol (2005) 252 : 131-138

[2] John J. Kennelly, Litigation of an Aircrash Case Against Manufacturer and Airline Which Resulted in Verdict for Two Million Dollars for Single Death, The Trial Lawyer’s Guide, (Vol.9. pg. 159) (1965 Callaghan & Company)

[3] Evrendilek F (2017) Effects of Climate Change. J Earth Sci Clim Change 8: e114. doi: 10.4172/2157-7617.1000e114

[4] Diminishing Returns/wikipedia