From Bill Gates at the end of the last century to John D. Rockefeller at the end of the previous century; from Rick Scott, founder of Columbia Health Care, to AT&T; from Richard Branson and British Airlines to Dan Peña and The Financial Times; from government, banking, insurance and every other facet of world commerce – to grow geometrically and stay, litigation must be used and mastered (wisely).
I will recall, as briefly as possible, the salient points of using litigation as a business tool.
Now, before we begin, I want to put on the record, about 50% of my 30-year litigation history has had nothing to do with making money, I mean, a lot of lawsuits have been out of principle, some were to right a wrong. egregious as slanderous comments about me; and some were because one entity just needed a comeuppance and no one else would carry the flag into battle.
I, like Don Quixote, have fought against many windmills.
As you have heard me speak and write, when creating your ‘Dream Team’ you want to have the Big Five Accountants and a big National or International Law Firm – the best representation you can’t afford!
Unlike the success-oriented fees that I recommend you use when facilitating transactions, no law firm will initially litigate on this basis.
Maybe if your case is especially strong, they will do it on a contingency basis. Unfortunately, from time to time you will use litigation as a positioning tool, and your case may not be something you can take seriously.
A year or two ago, when I was stuck with a pig in a poke, I had to litigate a case that had, at best, specious facts to support the desired outcome. Fortunately, our (my) apparent lust for litigation was stronger than his desire to fight a tough fight, so a reasonably good settlement was eventually reached.
Of course, during this process my good lawyers advised us, advising that our case was much stronger, etc. Even with great lawyers, it’s their job to inform you of the downside risks. Again, what happens is that you are often afraid to pursue your case.
Good lawyers win regular lawsuits. Great lawyers can win lawsuits where you have little or no chance of winning.
Three of my favorite litigators over the years are Steve Susman and Cyrus Marter IV of Susman Godfrey in Houston, Dallas, Los Angeles and Seattle and Tim Harris of Charleston Revich & Williams in Los Angeles. All three have pulled me out of some pretty big black holes.
I have dealt with them 10 and 20 years respectively. They are worth every penny they charge!
Our judicial system works, but we grow up fearing it. It is out of our comfort zone, so we prevent ourselves from benefiting from it. Normally, the cost associated with it prevents us from using it.
In fact, I am currently involved in litigation in which the auxiliary parties to the litigation have rights that are being seriously violated. A large group of people could exert great pressure, but they are afraid due to previous bad experiences. They might get what they deserve, but they are not pursuing their best interests.
There are lawyers who take cases for humanitarian reasons, if the case warrants it, also in business, that is, large important corporations that take advantage of the system just because of their size.
Why do you want to start the lawsuit because you are the plaintiff? As a plaintiff, you choose where and when the lawsuit is filed and likely ultimately awarded.
This can be a great advantage. And second, the plaintiff is allowed two closing arguments, which means that you (your attorney) can address the judge and/or jury once and then again after the defendants’ closing argument. This can also be very important.
26 Unbreakable Rules of Litigation
#1 CHOOSE YOUR BATTLE
#2 CHOOSE THE PLACE
#3 BE THE PLAINTIFF
#4 HAVE THE BEST REPRESENTATION
#5 LISTEN TO YOUR HEART
#6 DON’T LISTEN TO YOUR SICK STOMACH WHEN YOU ARE OUT OF YOUR COMFORT ZONE
#7 DON’T LISTEN TO FAMILY, FRIENDS, ET AL
#8 LISTEN TO EXPERIENCED LITIGANTS – LIKE ME!
#9 GENERALLY SPEAKING, DON’T WORRY ABOUT THE COST (THIS IS SO HARD!)
#10 BIG DEMANDS ARE BETTER THAN SMALL
#11 TRIALS BY CHOOSED JURY, IN CONTRAST TO A JUDGE ONLY
#12 PREPARATION (YOURS) IS EVERYTHING – KNOW THE FACTS
#13 PRACTICE DEPOSITIONS AND TRIALS
#14 IF YOU ARE THINKING OF A BETTER STRATEGY, GET A NEW LAWYER (NOT TRUE IN MY CASE)
#15 NEVER GIVE UP
#16 DON’T BE INTIMIDATED BY THE PROCESS
#17 USE MOCK TRIALS (FINAL TRIALS YOU CONDUCT BEFORE A HIRED JURY)
#18 DRESS PLAIN AND CONSERVATIVELY IN COURT – NO JEWELRY EXCEPT A WEDDING RING; WHITE SHIRT, PLAIN TIE AND DARK SUIT FOR MEN AND THE EQUIVALENT FOR WOMEN; STYLED HAIR SHORTS FOR MEN
#19 DON’T LOSE YOUR COOL IN COURT – IT’S OK TO CRY IF IT’S REAL
#20 HAVE YOUR SPOUSE IN THE FRONT ROW EVERY DAY. KIDS TOO IF POSSIBLE. OTHER FAMILY MEMBERS IN THE SECOND ROW IS OK
#21 THERE ARE NO QUOTES TO THE PRESS OTHER THAN ‘WE BELIEVE IN OUR CASE AND THAT’S WHY WE WENT TO COURT’. YOUR WORDS CAN BE EASILY CHANGED.
#22 WHEN YOU BREAK FOR LUNCH OR BREAK, REMEMBER NEVER TO SPEAK IN PUBLIC ABOUT THE CASE – YOU NEVER KNOW WHO MAY LISTEN
#23 WHEN YOU FIND A LEGAL TEAM THAT WINS, STAY WITH THEM
#24 ALWAYS TELL THE TRUTH, NO MATTER WHAT. THE TRUTH WILL MAKE YOU FREE.
#25 DURING VIDEO RECORDED DEPOSITIONS AND IN COURT, LOOK AT THE CAMERA AND THE JURY. MAKE EYE CONTACT.
#26 WHEN TESTIFYING AT A DEPOSITION/ TRIAL, IF YOU DON’T KNOW THE ANSWER, SAY YOU DON’T KNOW THE ANSWER
It is a closed world of the best litigants. Virtually all the big law firms have good or super good lawyers. All great law firms do not have great litigants. You don’t always need a great lawyer, but at some point, if you grow geometrically, you will.
Like any other project management, litigation must be managed. Unfortunately, just like giving a speech, you become a great litigator by going through a learning curve.
I don’t mean that you have to get involved in wasting efforts (like making bad speeches so that after a while you make good speeches) to be in a position to win in court. Large law firms will allow you to get ahead of the learning curve.
The Quantum Leap methodology talks ad nauseam about following your dreams. Life without dreams is like a bird with a broken wing: it cannot fly. I wrote this newsletter because sometimes you will need to litigate to follow your dream.
Get out there and kick some ass, and don’t let conventional wisdom stop you from achieving your dream.
Conventional wisdom says not to litigate.
Every top performer and great organization of the last hundred years has been litigating and litigating as I write this letter.
Do not litigate frivolously, but do not be afraid either.
to your quantum leap,
Daniel S. Pena, Mr.