One of the things that makes legal academia so frustrating to practitioners (and possibly courts) is that much of it appears to focus on easily-researched questions, instead of the genuinely difficult questions that would yield some practical use.
Case in point: there is remarkably little scholarship that takes on the question of how litigators actually litigate cases. And that’s what makes Lynn Lopucki’s and Walter Weyrauch’s 2000 article A Theory of Legal Strategy so unique. Almost no other legal article has attempted to take on the question of how strategy fits into the development of the common law. To be fair, there is a long tradition of legal realism, which posits that judges are swayed by various factors other than just the caselaw in front of them. But few to none of them look at the roles that lawyers play.
Our theory can be summarized as follows: “Law” has direct effect through the rendition and enforcement of judgments in actual cases and indirect effect through the anticipation of such rendition and enforcement in hypothetical cases. Each such case is a complex undertaking that may require hundreds of strategic decisions by the parties and generate an indefinite number of actual or potential legal issues and extra-legal problems. The “merits” of the case, as conven- tionally conceived, may be only one among them. Each of those de- cisions, issues, and problems is potentially outcome-determinative. The odds that any one will determine the outcome are small. But cumulatively, the odds that some combination of these decisions, issues, and problems will determine the outcome are large. The legal strategist manipulates those odds in a game of skill, expanding and developing the array of decisions, issues, and problems in a manner calculated to confuse and ultimately overwhelm the opponent. Even if the “merits” should ever reach a decisionmaker, it will be a decision-maker identified by the game, and the “merits” will reach that decisionmaker in a form determined by the game.
(Internal footnotes omitted; emphasis added.) The authors identify three different type of strategies: (1) those that enlist judges (mainly persuasive argument); (2) those that constrain judges (such as choosing particular cases, or developing a record for appeal); and (3) those that transcend judges (like imposing costs or persuading the litigants not to file a case in the first place).
They also explain one of the reasons why studying legal strategy is so difficult.
Because legal strategies are attempts to manipulate the outcomes of cases irrespective of their supposed merits under written law, strategies are widely viewed as unethical. Lawyers are reluctant to publicize the strategies they pursue partly for that reason. But an even more important reason is that most lawyers understand that strategies work best when unnoticed. Articulation can, and usually does, render them ineffective. These factors combine to drive legal strategy largely underground.
In their attempt to highlight the role of legal strategy in the development of legal doctrine, it is possible that Lopucki and Weyrauch have overstated the role of the lawyer. (At times, they appear to argue that judges and legal doctrine are all but irrelevant to litigation outcomes.) Regardless, it’s both surprising and a little disturbing how little follow up there’s been to this article. The more we understand about how legal strategy actually influences legal doctrine, the better we lawyers can be.