These days, quoting old military strategists is cliché. The movie villain or vacuous i-banker who cites Sun Tzu to sound smart and tough was overused by the mid-1980s. And by the ‘00s, reading the Art of War to look serious just looked sad. Far too many writers have applied strategists like poor, overworked, Sun Tzu to sales management, real estate, poker, even blogging. And, in doing so, they’ve diluted their effectiveness.
But here’s the thing: old military strategists, like Sun Tzu or Carl von Clausewitz, actually have things to say about complex litigation.
Complex litigation (and class actions in particular) involves two large entities marshaling large resources in order to fight a protracted campaign. That campaign will have a number of individual skirmishes (motions to dismiss, depositions, summary judgment, class certification, trial), each of which has larger strategic importance. And determining how to conduct those skirmishes, and how to allocate one’s resources in general, requires a constant assessment of one’s own strength, one’s adversary’s position, one’s allies’ positions (in multiparty litigation), and the probability of various outcomes. The old military strategists wrote about just these problems. Some of what they said clearly doesn’t apply to litigation. (For example, I can think of no reason to assemble lawyers in the "tortoise formation.") Still, many of the principles these strategists were considering do have application to modern class-action litigation.
Today, very quickly, we’ll look at a concept from Carl von Clausewitz. Clausewitz, a Prussian military officer who played a minor role in repelling Napoleon in 1812 (for which he shows up briefly in Tolstoy’s War and Peace), and who helped unite Prussia. His book On War is largely considered to be one of the seminal works on military strategy. And one of the concepts Clausewitz articulated best was the idea that a strategist needs to know his enemy’s strength of will.
If you want to overcome your enemy, you must match your effort against his powers of resistance, which can be expressed as the product of two inseparable factors, viz. the total means at his disposal and the strength of his will. The extent of the means at his disposal is a matter — though not exclusively — of figures, and should be measurable. But the strength of his will is much less easy to determine and can only be gauged approximately by the strength of the motive animating it. Assuming you arrive in this way at a reasonably accurate estimate of the enemy’s power of resistance, you can adjust your own efforts accordingly; that is, you can either increase them until they surpass the enemy’s or, if this is beyond your means, you can make your efforts as great as possible.
(Emphasis in original).
Determining the "total means at disposal" may not be as easy for the modern lawyers as Clausewitz suggests. (Although it is getting easier.) But you can get a general idea of an adversary’s strength by looking at the constraints it faces. What is the manpower of the opposing firm? How many lawyers show up on the pleadings? How much revenue does the opposing firm seem to have?
Strength of will is more difficult to determine, but there are some indicators that can help the analysis. How much money is at stake? Is this a smaller class action that is just making up part of the portfolio for a plaintiffs’ firm? Or is it a larger case on which a plaintiff’s firm could make its reputation?
Using this idea of “strength of will” as a way of approaching their case, defense lawyers can better determine just how long a case might last, and just how expensive it might be to settle.