It has been a while since I’ve tried to extract some strategic insight from sources other than the law, which means that a post on extra-legal strategy is probably overdue. In this case, I’m going to turn back to military strategist Carl von Clausewitz. (For more on Clausewitz, click here.) In particular, I want to focus on one of Clausewitz’s most innovative concepts in On War: the problem of friction. As Clausewitz defines it, friction is the part of
Everything in war is very simple, but the simplest thing is difficult. The difficulties accumulate and end by producing a kind of friction that is inconceivable unless one has experienced war.
Economists might call these accumulated difficulties "transaction costs," but doing so doesn’t quite capture the fact that a central feature of friction is the difficulty anticipating how it will manifest. Or, as Clausewitz himself puts it:
This tremendous friction, which cannot, as in mechanics, be reduced to a few points, is everywhere in contact with chance, and brings about effects that cannot be measured, just because they are largely due to chance. One, for example, is the weather. Fog can prevent the enemy from being seen in time, a gun from firing when it should, a report from reaching the commanding officer. Rain can prevent a battalion from arriving, make another late by keeping it not three but eight hours on the march, ruin a cavalry charge by bogging down the horses in mud, etc.
The same kinds of issues arise in litigation. Trials, for example, are not immune to weather delays. But these are hardly the only issues that constitute friction. An associate may hand over the wrong files in discovery. Or a partner may get cited for contempt after insulting a judge, changing the makeup of the team and giving a law firm extra personnel headaches. Or bad luck may strike a jury just before it renders a verdict. These kinds of twists are not foreseeable, but they have very real effects on litigation.
In many ways, this is the artful part of legal strategy. Coming up with a plan to defend (or prosecute) a case isn’t necessarily that difficult. But anticipating and accounting for friction, and adapting to unknown frictions as they arise, that’s what separates competent litigators from great ones. Or, as Clausewitz himself put it:
Friction is the only concept that more or less corresponds to the factors that distinguish real war from war on paper.
So how does one account for friction? Ironically, one of the best ways to do so is to plan out what one can in advance. It’s generally easier to modify a plan on the fly than it is to simply react to events as they arise. And a well-thought-out strategy will often take into account what happens if key events go wrong, or key assumptions turn out to be untrue. If one’s attention and energy will be occupied with friction once a case starts, it’s particularly useful to have taken care of as much of the easy stuff as possible.