I'm always hesitant to compare any other human endeavor to warfare. Art Donovan, the Baltimore Colts' Hall of Fame defensive tackle and WWII Marine, said it best: "People say football is war. Football ain't war. The guy in the trench over there doesn't know what a nice guy I really am." My reticence notwithstanding, there are some parallels between war and litigation, and one parallel in particular is important: in each endeavor, we are striving to accomplish a goal in the face of an opponent who is striving to ensure we don't reach that goal. With that in mind, it is fair to say that we can, on occasion, learn something from those whose struggles were more literal, and more serious, than our own.
One lesson that has served me well in my practice comes from Ulysses S. Grant, the nation's second five-star general: remember that your opponent is as scared of you as you are of him. The story of that lesson, as it played out in Grant's career and as applied to our careers, is an interesting study.
1.
The Lesson
While
Ulysses S. Grant went on to great acclaim as the commanding general first of
the Army of the Tennessee and later of the entire Union Army, the beginning of the
Civil War found Grant in command of a relatively small (just over 3,000 men)
regiment consisting largely of volunteers, rather than trained soldiers (Grant
was a West Point graduate, and his prior war-time experience had been the
Mexican War, during which the United States' forces were almost exclusively
trained, professional soldiers).
Furthermore, while Grant began the Civil War as a Colonel, he had left
the Army in 1854 as a captain, and had never been ultimately responsible for a
post or region before---Grant had always had a superior whose orders he could
follow, and who was responsible for strategic decisions. Thus, in 1861, when Grant found himself in
command of the Twenty-First Illinois Volunteer Regiment, and responsible for
the District of Cairo (Illinois), he was in a position he had never filled
before: that of ultimate authority over his men, and his region.
In
July of 1861, Grant and his regiment was on its way to Quincy, Illinois when he
was informed that Confederate forces had surrounded Union troops near Palmyra,
Missouri.
Grant changed course to
relieve the Union garrison.
In his
memoirs, Grant wrote: "My sensations as we approached what I supposed might
be 'a field of battle' were anything but agreeable.
I had been in all the engagements in Mexico
that it was possible for one person to be in; but not in command.
If some one else had been colonel and I had
been lieutenant-colonel I do not think I would have felt any trepidation."
Grant arrived in Palmyra to find that the
Confederate forces had decamped prior to his arrival, but was ordered to
continue south to Florida, Missouri, and engage Confederate Colonel Thomas
Harris, who was believed to be encamped in that area.
Grant recounted the morning his forces
arrived at Harris' encampment this way:
As we approached the
brow of the hill from which it was expected we could see Harris' camp, and
possibly find his men ready formed to meet us, my heart kept getting higher and
higher until it felt to me as though it was in my throat.
I would have given anything then to have been
back in Illinois, but I had not the moral courage to halt and consider what to
do; I kept right on.
When we reached a
point from which the valley below was in full view I halted.
The place where Harris had been encamped a
few days before was still there and the marks of a recent encampment were
plainly visible, but the troops were gone.
My heart resumed its place.
It
occurred to me at once that Harris had been as much afraid of me as I had been
of him.
This was a view of the question
I had never taken before; but it was one I never forgot afterwards.
From that event to the close of the war, I
never experienced trepidation upon confronting an enemy, though I always felt more
or less anxiety.
I never forgot that he
had as much reason to fear my forces as I had his.
The lesson was valuable.
2. The Outcome
While
we are all aware that the Union won the Civil War, and while most of us are
generally aware that Grant was instrumental in that victory and became first a
hero to the American public and then a two-term President (a role he proved to
be much less suited for), the precise mechanism of Grant's victory is not
nearly as well known. While entire books
have been written about the Civil War's endgame, a cogent summary of Grant's
tactics suffices for our purposes. The
Overland Campaign had two major components: General Sherman would transit the
deep South to disrupt Confederate supply chains, while Grant would enter Virginia
to locate, engage, and destroy General Lee's Army of Virginia.
Grant's
portion of the Overland Campaign consisted of a series of battles against
General Lee, which are remembered (in order of occurrence) as The Wilderness,
Spotslyvania, North Anna, and Cold Harbor.
From an outside perspective, none of these battles individually, and
certainly not the battles collectively, appear to be Union victories. Total Union casualties for these battles were
52,788, while Confederate casualties were 32,907. Following Cold Harbor, Grant besieged Petersburg,
Virginia, a vital railroad hub. The
first weeks of the Petersburg siege looked as mathematically bad for Grant as
the Overland Campaign up to that point: the Union was suffering casualties at
three times the rate of the Confederates.
But Grant's constant westward elongation of the Petersburg siege line
thinned Lee's lines to the breaking point, and on April 2, 1865, Petersburg
fell to Union forces. Lee surrendered to
Grant at Appomattox Courthouse on April 9, 1865, effectively ending the Civil
War.
Civil
War historians and military academics are sharply divided in their judgment of
Grant as a commanding general. Grant's
detractors argue, in essence, that Grant's victory was ultimately merely a
numbers game---by the time Grant rose to command of the Union armies, Union
forces so overwhelmingly outnumbered Confederate forces that victory was almost
a foregone conclusion. Detractors
frequently point to Grant's inordinately high casualty rates as evidence of his
lack of skill as a commanding officer and tactician.
Putting aside the true size of
the Union numeric advantage under Grant's command (which has been, and
continues to be, hotly contested), there are several points to be made in
Grant's defense.
First, the Union had enjoyed
numeric advantages throughout the Civil War, and yet General Lee and the
Confederates had consistently won battles against Grant's predecessors.
Second, while Grant's armies indeed suffered
significant casualties, any critique of Grant's tactics must begin with an admission
that Grant achieved his goal: the defeat of Lee's Army of Virginia.
This has been the primary Union goal since
the beginning of the war, and Grant achieved that goal in little more than one
year.
Grant's
tactics in the Overland Campaign directly recall the lesson he learned in
Missouri. Grant knew General Lee's
reputation as an effective and brilliant general, and certainly Grant knew of
Lee's past successes against the very army Grant was to lead. Yet if Grant was in any way afraid of Lee or
his army, the tactics of the Overland Campaign do not reveal it. Grant entered Virginia to engage Lee's army,
and once the armies were engaged, Grant pursued Lee wherever Lee took his
forces. As often as not, the location of
their battles was determined by Lee, and Grant's forces were often attacking
entrenched, defensive positions. Many
Union generals before Grant had avoided engaging Lee when they would have to
attack defensive positions. Grant had no
such compunction. And, while Grant's
casualty rate was high, no one can argue with the results of his campaign.
3. The Application to the Practice of Law
Lawyers constantly obsess about
the weaknesses in our cases. By the time
discovery is in full swing, no one knows the holes in our case like we do. Further complicating matters, many times our
clients either cannot or will not recognize that these same problems exist, and
many clients who will admit their own problems brush off any concerns with a
"it doesn't matter that we did X, because they did Y, which is much worse"
approach. Thus, the lawyer, particularly
the partner in charge of the case, is left virtually alone to worry about how
to deal with the holes in his or her case.
There
are several important lessons we can learn from Grant.
First, remember that when we say "no one
knows the problems in our case like we do," that is usually literally
true.
So long as you have made a
thorough investigation and done an appropriate, neutral analysis, at any time
during the litigation, you are more familiar with the weaknesses in your case
than your opponent is.
Second, remember
that you're not the only one agonizing over the problems in your case---your
opponent probably is, too.
Rather than
just thinking about why you are afraid of your opponent's case, spend some serious
time thinking about why your opponent should be afraid of your case.
It
is also possible to use this lesson to your advantage in settlement
negotiations. Just as we all know the
weaknesses of our own cases, so too we recognize when our opponent has
identified one of these weaknesses. As
parties enter settlement discussions (whether they are formally-structured
negotiations like mediation, or informal counsel-to-counsel negotiations),
their view of their own case is influenced by what has transpired in the
litigation. If you can focus early
discovery on your own theories of the case, you should be able to identify
enough weaknesses in the other side's case to favorably tip the negotiating
field in your favor.
