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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Insight from Other Strategists – Sun Tzu on Terrain

Posted in Strategy

Tibetan terrain.

And so we come to Sun Tzu. Poor, abused, overused, Sun Tzu, who’s been drafted to advise on everything from sales to blogging.

Sun Tzu is popular because he’s easy to quote.  Because Sun Tzu is so aphoristic, most books, commentators, etc., focus on either (1) how to apply those aphorisms in a modern context ("Know the enemy and know yourself, in a hundred battles you will never be in peril" is a popular one, at least measured in Kindle highlights); or (2) annotating the work to explain the true context of some of Sun Tzu’s more popular sayings. (Which means, you’re either getting disconnected advice or lessons in Chinese military history.)

But, at least as the author originally conceived the work, it was meant to communicate real strategic lessons to others like him. Leaving aside the easy aphorisms ("To subdue the enemy without fighting is the acme of skill …"), I’d like to focus on what one can glean by treating Sun Tzu as an actual strategist. So, today, let’s focus on one of Sun Tzu’s less glamorous, yet incredibly useful discussions: terrain.

Sun Tzu devotes an entire chapter to analyzing terrain. (Chapter X, for those reading along at home with the OUP’s edition.) It discusses various kinds of ground, including "accessible, entrapping, indecisive, constricted, precipitous, and distant." And several other chapters (particularly on Marches and Maneovres) rely heavily on his analysis of terrain.

What does terrain have to do with litigation? Who cares what kind of ground the courthouse sits on?

Terrain matters because it’s a central element of any strategy. (The OED defines terrain as a tract of land as regarded by a geographer or military tactician.) For soldiers, that means terrain is the actual ground on which they fight. As Sun Tzu points out, it matters what kind of ground one occupies. Certain ground offers tactical advantages. And different ground requires different tactics.

For lawyers, terrain is different. It’s the facts and law that surround the case. But the effects are the same. Some of that terrain can be modified to help the lawyer, much as one might conform physical terrain into a defensible position. But some is just there, immovable. A lawyer can argue for different interpretations of a rule, but she can’t change the text of a statute without the help of a legislature. And while she can highlight favorable facts and minimize unfavorable ones, she can’t (short of unethical conduct) eliminate facts completely.

Or, as Sun Tzu put it:

Conformation of the ground is of the greatest assistance in battle. Therefore, to estimate the enemy situation and to calculate distances and the degree of difficulty of the terrain so as to control victory are virtues of the superior general. He who fights with knowledge of these factors is certain to win; he who does not will surely be defeated.

So far, so obvious. Most lawyers caution that you should know the facts and the law surrounding your case. But reading Sun Tzu on terrain lends one other insight that should help legal strategists, class action or otherwise: terrain can be analyzed.  And different basic strategies are best suited to different types of terrain.  

There’s a dearth of good writing about legal strategy. Some of that is because insiders in a given case can’t write about matters protected by work-product or the attorney-client privilege. But another reason for the void is that lawyers often claim their cases are exceptional because of specific facts, specific clients, or specific laws. We wind up cataloguing trees instead of learning to fight in forests. (There are solid marketing reasons to do this. This is how we sell ourselves as lawyers. Only we have the proper experience defending FDCPA class actions against mid-tier lending institutions in the Eastern District of North Carolina.)

It doesn’t have to be that way. Rather than contenting ourselves with aphorisms ("Know the facts! Know the law!") or claiming that each unique case requires a unique, non-transferable strategy, we can start, like Sun Tzu, actually cataloguing the strategies that have evolved for different forms of legal terrain.

In other words, it’s time for more discussions of how legal strategy actually works on the ground.

 

(Image is Kampa Dzong, Tibet [1904] John C. White [RESTORED], courtesy of Wikimedia Commons on a Creative Commons license.)