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Lawyering Is Hell

Civil War Gen. William Tecumseh Sherman is believed to have said, "War is hell." If so, the practice of law must also be hell, because lawyering is war. Or so suggest two recent news items.

First comes today's release of the aptly titled book Litigation is War, written by Frederick L. Whitmer, a senior litigation partner in the New York office of Thelen Reid Brown Raysman & Steiner, and published by West Legalworks. Drawing on the 19th-century military strategy treatise On War by Carl von Clausewitz, Whitmer explores how lawyers can use classic military strategy in the courtroom. He explains:

"The whole idea here is to think about litigation as an enterprise in which you are trying –- as Clausewitz says about war -– to impose your will on the enemy. Litigation involves the exercise of force through judicial compulsion, to impose your will on your adversary. And, if you’re a defendant, of course, to resist the other side’s will being imposed on you."

In the book, Whitmer advocates following three of Clausewitz's war principles:

  • Be as strong as possible at determinative points.
  • Always pick the right time and place to fight.
  • Never divide your forces by separating the credibility of the argument from its substance.

At the same time, he urges lawyers to avoid the three most common military mistakes:

  • Failure to learn.
  • Failure to adapt.
  • Failure to anticipate.

Which brings us to the second news item, wherein two Ohio lawyers may be wishing they'd had Whitmer's book before they became involved in a skirmish of their own last year. Business Week reports (via Law Blog) on a lawsuit filed May 7 in which Ohio lawyer John Masters says he was assaulted by his opposing counsel, Stephen Sferra, during labor negotiations between a bakery and its workers. As Business Week reports:

"Sferra allegedly choked and punched Masters and knocked him to the floor of a hotel conference room as the two sides argued over pension provisions. In August, Sferra pleaded no contest to charges of disorderly conduct."

If true, then Sferra obviously was unaware of Whitmer's caution to pick the right time and place to fight, and Masters clearly failed, as Whitmer cautions, to anticipate his opponent's next move. Then again, the parties ended up agreeing on a new labor contract less than a month later, so perhaps rather than an imposition of one side's will on the other, there was, after the dust settled, a meeting of the minds. And isn't compromise always preferable to war?

To listen to a podcast in which Whitmer discusses his book and his "Litigation War Colleges," follow this link.

Posted by Robert J. Ambrogi on May 29, 2007 at 06:19 PM | Permalink | Comments (1)


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