Tuesday, February 25, 2003

(work in progress)

In one of his engaging torts and damages classes, aviation lawyer, Jose Claro Tesoro once remarked that the only time that he will be handicapped to work is when he becomes insane. A lawyer can be blind, deaf, mute, and dumb, but so long as he can think, he can work. Lawyering is a thinking man's profession.

Thinking precedes any lawyerly action for any work brought to his desk. Time, effort and resources will only be put to waste if action precedes thinking. Errors abound in unplanned actions. Thus, thinking occupies ninety percent (90%) of the lawyer's time. The rest are spent reading, writing and speaking -- activities that can be delegated to somebody else after content and strategy have been developed.

Lawyerly thinking requires more than a mastery of the law. Even if one has mastered the Rules of Civil Procedure, it doesn't necessarily mean he can win a case. Mastery of the rules of chess is not mastery of the game of chess. The study of the law teaches the lawyer how to file and litigate a case. But it doesn't teach him how to win. How does one therefore become a master of the game of law?

To study litigation beyond the rules but in respect of strategy and technique is the beginning of lawyerly success. Sadly, there is no textbook for strategy available for today's lawyer. There are specific treatises on cross-examination, legal writing, and argumentation, but these only address particular tools of the profession. None provides global insights into lawyerly advocacy.

If war is a metaphor for conflict, then Sun Tzu's "Art of War" provides the best insights on strategy for any conflict, be it a game or profession. As a military text, Sun Tzu's "Art of War" provides a paradigm for warfare that has not been overthrown in its 2.400 years of existence. When read in the context of legal conflict, "Art of War" is a gold mine of ideas, which can be readily applied. Let us therefore read "Art of War" and relate its context to the lawyer and hopefully elevate our standards in the game and profession of litigation.

17. All warfare is based on deception."

Litigation is warfare. When two people sue each other, they don't sue to make love. They sue to defend their interest and destroy the interest of the other. The classic situation in any litigation is that of one party complaining and the other responding to the complaint. The judge is there to see if the complaint is valid and if the response is deficient to determine which among the parties should pay. It is a battle of wits.Words are the bullets.

If the goal is to win the war, truth should be thrown out of the window. Deception is the strategy: Deception within the bounds of the law. The law prohibits false statements in court. But the law doesn't prohibit incomplete statements. The law allows selective emphasis. The law allows silence. If a lawyer were to win a case, he should emphasize his strenghts and be silent on his weaknesses. These are all elements of persuasion, essentially deceptive, but within the bounds of the law. The truth is for the court to decide.Thus, the master of deception is the master of litigation.

"Waging War

3. Victory is the main object of war. If this is long delayed, weapons are blunted and morale depressed. When troops attack cities, their strenghts will be exhausted.

4.When the army engages in protracted campaigns, the resources of the state will not suffice.

5. When your weapons are dulled and ardour dumped, your strenght exhausted and treasure spent, neighboring rulers will take advantage of your distress to act. And even though you have consellors, none will be able to lay good plans for the future.

6. Thus, while we have heard of blundering swiftness in war, we have not yet seen a clever operation that was prolonged.

There is no point in engaging in a long protracted litigation. Litigation is expensive. It costs a lot of time and money. The Rules of Procedure favor delay. Thus, when commencing a suit, the lawyer should design it to achieve its objectives in the shortest possible time and with the least expense to the client. Most Filipino lawyers are not conscious about this principle and clients can hardly be expected to know better. Filipino lawyers think cases are cash cows. Thus. cases move in circles and take long to finish. As a result, litigants lose a lot of time and money and eventually lose trust in the system.

The easiest way out of a case is to compromise. A bad compromise at the beginnning of the case is often better than a winning decision 10 years later. Thus, a good lawyer will design his case to achieve the best compromise at the earliest possible time.

(More to follow)

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