INTRODUCTION

Today’s litigators need to be able to think strategically. Not only must they understand how to put a case together for trial, they also need to understand the clients’ business and long term goals in order to be able give their clients wise advice.

They need to be able to determine where the client wants to go and how best to get there. They need to be able to get information (both facts and feelings) from the client as well give clear, precise, comprehensive advice to the client. To that end they need to be skilled interviewers, brainstormers, fact investigation planners, and comprehensive thinkers, as well as informed, strategic thinkers, wise counselors, and negotiators.

Once a lawyer accurately determines where the client wants to go—the ends he desires—then the process requires reverse engineering from the end goals back to the facts and procedural alternatives most likely to get there. Sometimes this means the client should just walk away from the dispute, because litigating will distract the client from getting where the client needs to go. Sometimes it will mean that the lawyer will teach the client how to resolve the client’s dispute for him or herself. Sometimes there is persuasion involved, where the lawyer may persuade the officer of an institutional client why the firm is better off taking a particular approach to resolving the dispute. Sometimes, where the dispute concerns matters of principle or where the client needs to establish a legal precedent, then a trial might be the best course. Legal strategy helps the lawyer discern when to advise the client to play his litigation cards, or when to “hold em, or when to walk away, or even, when to run.”

As used here, legal strategy is the “skills” part of legal judgment or wisdom. These skills are not sufficient in and of themselves. After all, the foundation for the qualities necessary to the lawyer’s craft lie in character traits and deep knowledge that one would not characterize as “skills” at all—personal integrity, an inner moral compass, and a perception of one’s work as embedded in broad social, economic, political, historical, and for some, spiritual contexts.

Still, while judgment is an ensemble of settled dispositions, broad judgment and quick intelligence, a focus on skills can start to teach judgment by focusing lawyers in a continual exercise in deliberation on what matters most.

That is what these materials seek to do. And their focus is on the legal process pre-litigation, transactional, and negotiation process, and those processes that are alongside litigation. With respect to litigation these processes focus both on whether to litigate and determine whether to choose alternative strategies to the traditional litigation process. Legal strategy in the context of pre-litigation, or alongside litigation, is the process that brings together skills from a range of disciplines. Each of the disciplines has a substantial literature of its own. In this book, the process is described in a way that brings together the basics of each discipline and provides references for further reading in depth on each skill.

Some argue that professional (client-centered) strategic decision making is strategic decision making, especially when it involves a professional and a client; whether for architect, engineer, doctor, or lawyer. It involves three basic steps: gathering facts and defining the problem, counseling the client for the client’s input and consent for what steps will be taken on the client’s behalf, and the implementation of the client’s decision. The steps in legal strategy can be defined more particularly as follows:

Step 1—fact investigation and issue formulation. The lawyer needs to define the problem or decision.

Step 2—client counseling. The lawyer needs to identify the client’s (or other relevant parties’) goals, underlying objectives, assign priorities or weights to those objectives, and specify the criteria in terms of which solution will be evaluated.

For the counseling to be effective for the client, the lawyer needs to be able to generate alternative solutions or courses of action and then assess the alternatives. The lawyer needs to help the client evaluate the consequences of each alternative according to how well they satisfy the client’s underlying objectives. As a part of this counseling process the lawyer must update and go deeper in gathering client-centered information (understanding client values, risk preferences, social and psychological makeup, and particular economic concerns) necessary to assess each alternative to help the client select the optimal course of action according to the expected effectiveness in meeting underlying goals. In this regard the lawyer needs to present advice in a way that both respects client autonomy and calls the client with wisdom to its higher and best self.

Step 3—implementation of the client’s decision through the right dispute resolution process, either negotiation, mediation, or adjudication. The lawyer needs to think strategically about each dispute resolution process, to best implement the client’s decision and monitor its implementation, being prepared to re-engage in the decision-making process as unforeseen problems are encountered.

Devising a legal strategy is a task that is readily defined:

How do we get from “here” to “there” within the existing constraints of time and money?

To be successful at legal strategy, a lawyer needs to define “here” accurately and efficiently. In other words, the lawyer needs to know the limitations that operate in the real world, and that constrict a possible more theoretical and complicated decision analysis.

What are the facts about the situation as it exists today? What level of certainty (probabilities) that the facts are as the client sees them? What facts or policies lie below the horizon, but are non the less operating? The existing constraints of time and money may change as events unfold, but it is important to define them accurately so that the strategy fits the problem.

Next, the lawyer needs to help the client to define “there” in a practical fashion.

What alternatives best serve the client’s goals and interests? What consequences—economic, social, legal, and moral—are likely with each alternative?

What is an acceptable outcome? Skillful lawyers usually focus on an acceptable outcome rather than a “good” outcome or a “total win” outcome in order to have more flexibility in devising a strategy.

This book is organized chronologically.

Chapter 1 will discuss Step 1, and explore the process of defining the problem and framing the issue for the client, and the skills necessary to do this. It will focus on document management, client interviewing, and witness interviewing as key skills in best defining the problem for the client.

Chapter 2 will also deal with Step 1, as it will describe techniques for finding facts in addition to those facts that come from the clients: including documents from opponents, third persons, and interviews with unfriendly witnesses.

Chapter 3 will deal with case analysis, including: defining the client’s problem—how to develop the best legal theories, factual theories, and themes for the case. It will frame the “deep issue” in the case as a way of not only helping the client understand the situation, but as an important step in strategizing about how to solve the problem.

Chapter 4 focuses on the counseling process. It will show how to prepare the client for the decisions to be made by developing the key alternative solutions, and gathering information that will help the client judge the likely consequences of each alternative. This chapter will explore decision making frameworks grounded in the rules of professional responsibility and three alternative models taken from moral philosophy and ethics to help propose a fourth practical and integrated approach to counseling and legal strategy.

Chapter 5 will focus on how best to strategize to implement the client’s decisions by testing the strategy through negotiation and mediation. It will take the lawyer through strategic models useful for preparing to negotiate or work with a mediator to design a solution that fits the client’s goals.

Of course, if these efforts fail, then the lawyer has also best positioned the case for its resolution in court. In other words, chapter 5 will show the lawyer how to make best strategic use of the pretrial process for a resolution most consistent with the client’s goals.

Homestead Properties Inc. A Legal Strategy Case File

To keep our discussion from spinning off into abstract theory, this book will make use of a NITA case file for examples. The case file is called Homestead Properties Inc., A Legal Strategy Case File, and deals with Homestead, a construction company that mass manufactures low-cost, prefabricated individual housing units for apartment developments in Georgia and Florida. The business was started by the Steadman brothers in the early 1990s and incorporated in Nita City in 1999.

All of the apartment complexes constructed by Homestead were identical in design and construction. The only difference was the number of units in each complex. They were all modular construction consisting of factory-built 12’ x 24’ sections that were transported to the site and arranged side-by-side and back-to-back on concrete block foundations. Usually there is a stem wall in the front and support piers in the back, which allows a crawl space under each unit.

Homestead’s Chief Financial Officer Eleanor Addington is a young a fast rising officer in the company, who started with the company when it was still a family operation. In the case file as it rolls out, Ms. Addington comes to the company’s lawyer with three different problems. The first concerns a problem with a competitor, Best Homes, who seems to be engaged in a campaign of product disparagement of Homestead’s properties, telling prospective buyers that Homestead’s homes are poorly made and termite infested. The second part concerns a discovery by Homestead that their properties are indeed, termite infested, and the company’s claim under its insurance policy with American Insurance Company, for coverage of the problem.

The third part deals with Homestead Properties claims under its excess policy carrier, Manhattan Casualty company, for its claims of termite damage in excess of the $25 million cap on its policy with American.

This last situation between Homestead Properties and Manhattan will be the focus of much of our examples in the following chapters. It involves the interpretation of an insurance contract, and questions of parole evidence from a meeting Homestead’s CFO Eleanor Addington had with a Mr. Alex Hirp (an insurance broker), and David Cosham (representing Manhattan Insurance, recently deceased). There are some notes that have been recovered of the meeting, but the notes are subject to different interpretations of what happened. So the situation presents classic reconstruction problems and is subject to different narratives, depending on what side of the case the teller of the narrative is on. It provides of excellent paradigm for discussing legal strategy.

INTRODUCTION

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