Litigation

The Art of War in Modern Litigation – If Sun Tzu Was a Lawyer

Author
Stephen Le

Recently I’ve been thinking: given that litigation can sometimes feel like a battle, what would the ancient Chinese strategist Sun Tzu think of modern litigation?

Born as Sun Wu around 544 BC, he is better known for his honorific name, Sun Tzu, which means “master.” Sun Tzu was a Chinese general, military strategist and famed author of The Art of War, which is known as the earliest military treatise and a revolutionary guide to war.

Now, how do we marry the two? How are the recorded thoughts of a man born more than 2000 years before still relevant today? What follows are strategic considerations for commercial litigation, liberally adapted from Sun Tzu’s maxims.

1. “He will win who knows when to fight and when not to fight.”

It can be said that Sun Tzu lived out the modern saying “work smarter, not harder”. Instead of applying brute force in the battlefield, he combined philosophy, wit, and careful planning to avoid rash physical altercations where possible.

Likewise, in our personal lives, we need to remind ourselves that not every battle needs to be fought. Sun Tzu also said things like, “the greatest victory is that which requires no battle” and “the wise warrior avoids the battle.”

I am a disputes and litigation lawyer and yet I will be the first to tell you that it is not always the best course of action. It pays to count the cost and discern the difference.

2. “If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

Interestingly, many of Sun Tzu’s Art of War quotes that center on strategizing, finding victory over an enemy, and leadership, have influenced plenty of other competitive sectors—even in today’s culture.

In a trial, it is also incredibly important to truly “know your enemy” and use brains over brawn. For legal professionals, this looks like doing a thorough investigation on all persons involved, scrutinizing the matter from different angles and running through a rigorous risk analysis for the various stakeholders before entering the courtroom. It is the least we can do.

3. “The whole secret lies in confusing the enemy, so that he cannot fathom our real intent.”

Imagine being on the other side of an opposing party’s military strategy. A wise enemy will also look to know their enemy (you), with the intention to overcome (you). The question to ask here is, “what do your opponents know about you?”, and have you been gatekeeping what you let loose?

Another saying by Sun Tzu that goes along with this says, “Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt”. In modern litigation, practically this means we ought to diligently build up our case against the opposing party and go one step further in weaving in an element of surprise that will bring about a winning leverage to obtain total victory.

If Sun Tzu was alive today

I wonder, if Sun Tzu was alive today, would he have chosen to make the courtroom his battlefield? If he did, he would probably have been legendary. But for now, as legal professionals, we can certainly bring his insights to life.

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