Lawyers are often engaged to resolve conflicts. Sometimes the conflicts are resolved peacefully and harmoniously in a win/win environment and other times the resolution comes out acrimoniously and bitterly in a win/lose scenario. The former outcome is always preferred, yet many of us unwittingly choose a method of professional behavior that drives us toward a hostile, embittered and emotionally draining environment that we didn’t want.
How can this happen?
For insight, let’s look at an ancient Chinese military philosopher, Sun Tzu, who wrote The Art of War during the fourth century, B.C., and then compare it to the relatively recent principles expounded by Morihei Ueshiba, the Japanese founder of the martial art of Aikido. The Art of War was brought to the attention of the western world when it was translated into French and published in Paris in 1772. Napoleon is believed to have read and studied it. In more recent times, trial litigators and corporate executives have quoted from it in order to justify their tactics. Sun Tzu recognized that war was a matter of vital importance to the state and that it was mandatory that it be studied and mastered. (Machiavelli, when he wrote The Prince in 1513 A.D., had a similar vision about the importance of obtaining and holding power).
Sun Tzu was ruthless. He once had two of the King’s concubines beheaded after they repeatedly failed to follow his explicit instructions. Afterwards, all the other concubines followed orders as told. Sun Tzu was clever. He believed that all warfare is based on deception. He advocated angering the opposing general in order to confuse him, and sought to keep him under strain so he would wear down. Sun Tzu was aggressive. When his forces were abundant he urged attack. He encouraged agitation of the enemy and counseled striking where the enemy was most vulnerable.
Many lawyers follow these tactics in an attempt to gain strategic advantage over opposing counsel. Their goal is to win “the war” for their client and they will use any tactic allowed by the Local Rules or the Rules of Civil Procedure, etc., and can adamantly defend their actions by saying nothing they have done violated the Rules of Professional Conduct. Although Continue reading