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Litigating a Comp Case: Some Lessons from The Art of War

By Marjory Harris, Esq.

The Art of War has influenced military strategy for over 2000 years. It contains valuable lessons for the legal practitioner as well. In this article we apply some of its wisdom to the art of litigation.

“For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.”

     

Litigation is like war. In a previous article, we discussed letters as a major component of the battle plan. We now look at workers' compensation litigation more generally, using the sayings of that great general, Sun Tzu, who emphasized planning and knowledge of the enemy.

 
The Art of War is an ancient Chinese military treatise that is attributed to Sun Tzu
Strategize before taking action

Sun Tzu emphasized preparation. His opus starts out with laying plans and making careful calculations.

You need to lay plans as soon as you are retained. You need a strategy that will lead to settlement or, if that fails, to a successful result at trial. Winging it, flying by the seat of your pants, last minute MSC preparation are all ways to assure less than the best results for your client.

You need to be willing and able to change your strategy as conditions change. The more approaches you are skilled at, the more options you have for successful representation.


You need to lay plans as soon as you are retained. You need a strategy that will lead to settlement or, if that fails, to a successful result at trial.

Goals for your career and your case

To start with, know your own goals as a lawyer. If you want to establish a reputation for integrity and professionalism, you need to make the commitment at the swearing-in ceremony, if not earlier. Everything you do from the day you start practicing law will be with you in the case you are now handling.

Decide early in your practice what type of lawyer you want to be, and how you want to be perceived by your colleagues and judges and others in the legal community. Do you want to be seen as reasonable, fair, and mediative, and full of integrity? Do you want to be respected, or just feared or despised? What we do and how we do it does matter, as over the years we build a reputation for integrity or laziness, for being reasonable or unreasonable, for resolving problems or generating problems.

Next, what are your client's goals? Can you ethically achieve the stated goals or persuade your client to a more realistic goal? Or are you just a mouthpiece, uttering what the client wants you to say no matter how legally untenable?

As you build your practice and reputation for integrity and professionalism case by case, remember too that If you don't take on tough stuff, you never grow as a lawyer. Take on challenging cases and learn from them. That helps you later win with ease: What the ancients called a clever fighter is one who not only wins, but excels in winning with ease: “The skillful fighter puts himself into a position which makes defeat impossible.”


What the ancients called a clever fighter is one who not only wins, but excels in winning with ease: “The skillful fighter puts himself into a position which makes defeat impossible.”
 

Always be strategizing, but avoid deception

One of the basic tenants of the Art of War must not be followed, and that is the one about deception (“All warfare is based on deception”). This can run afoul of 8 CCR 10561 and State Bar ethics Rule 5-200 on Trial Conduct. On the other hand, while that rule prohibits certain behavior, you still have the ability to strategize and plot your course in a way that ethically and legally maximizes the benefit to your client. Since strategizing before taking action is one of the major tenants of the Art of War, you should of course continue to do that, but without ever being deceitful.


Plot your course in a way that ethically and legally maximizes the benefit to your client.
 

Planning is key

“The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand.”

Sun Tzu emphasized the need to plan before engaging in battle. Planning is key in litigation as well as war. As conditions change, strategy must change. Make a plan for what you need to prove and how and when you will prove it. The plan can use a form, such as the Issues & Evidence Analyzer, an outline or collection of notes. Failure to plan your case makes it easy to be swept up and away by your opponent -- just what Sun Tzu counseled against.

The plan should note what needs to be proved, who has the burden, what evidence will be needed, and whether that evidence meets the standards for admissible evidence and substantial evidence. See The ABCs of Admissibility

For example, many attorneys have a knee-jerk reaction when they get a QME report they don't like: they set a deposition. But what about other approaches to consider, such as sending a letter asking for clarification? Or having the primary treating physician review the report and write something, or taking the deposition of the primary treating physician instead of the QME? Consider the various outcomes from the possible courses of action based on the facts of the case, governing law, and your client's goals, before taking any action. The same applies to setting a case for hearing. There are many pitfalls to this and may catch you unprepared. Better to think things out clearly and make sure that is the best way to resolve the problem.

The devil is in the medical content. It is critical to review all medical evidence as it arises, and to regularly check with your client about their condition and their symptoms, complaints, and limitations. Find out if they are experiencing any side effects of medication, have to use assistive devices, whether they are looking for work or are actually working, etc. Often these details do not appear in the treatment reports, so send a communication or make a call every few months to see if the situation has changed. At the minimum, at least a month before any medical-legal evaluations, you need to make sure you understand where your client is in terms of treatment, limitations, symptoms, and attempts to work.

If something changes, you need to know, because the plan then changes.

Sun Tzu emphasized the need for spies, but what we need is to create our own intelligence by considering what interests the other side. What do they need to accomplish, and what methods will they use? Check online to see if anything they have written can inform you of their approach to litigation. Check with trusted colleagues. Do not litigate in a vacuum: know your opponent and their aims and approaches.

But do not plan your strategy solely based on your opponent's usual methods, because that could change. The particular attorney or adjuster may change. Will your plan allow you to succeed no matter the cast of characters? Base your long-term strategy on having to try the case later. That way you are prepared for both settlement and trial.


“And therefore those skilled in war bring the enemy to the field of battle and are not brought there by him.”
 

The modern method

Essentially, if you keep everything organized and keep on top of the facts and documents as they accumulate, it is much easier to plan for the avoidance of battle, or, if that fails, for the battle itself. To do this effectively, you need to organize the facts, legal research, and the documents either in spreadsheets, outlines or databases. The method I proposed for preparing for a deposition also works well when preparing for trial. You need to do all this preparation before the Mandatory Settlement Conference; better yet, before either side files a Declaration of Readiness. If you get in the habit of saving your data in an easy to find format, then it is kept up to date all along and you are not taken unawares by your opponent's sudden move to litigate.

Many years ago, before the electronic era, we had no way to prepare for trial other than taking notes on yellow pads as we reviewed everything. The best practice was to make a trial book with tabs and an index. But now this old method is inefficient and dangerous. It is far easier to use a case management system and keep tract of everything as the case progresses.

Careful planning is essential to succes. Use the best available equipment and troops.


Careful planning is essential to success. Use the best available equipment and troops.
 

Consider now and later

Consider both short- and long-term goals. Sun Tzu advised, “To win 100 battles is not the height of skill, to subdue the enemy without fighting is.” Bear in mind that the goal is to be efficient and effective. Actions that engender rage or obstinacy will extend litigation, so be careful not to provoke blowback by rude phrases.

What is essential in war is victory, not prolonged operations. Try to achieve your goals with a minimum of resources. It is important to know what battles are worth fighting, and what battles are to be avoided. Threatening board proceedings does not necessarily help your client’s case. Consider the potential outcomes: avoid blowback by taking the high road and maintaining a professional tone and stance.

“He who knows when he can fight and when he cannot will be victorious.”


Consider the potential outcomes: avoid blowback by taking the high road and maintaining a professional tone and stance.
 

Plan for unintended consequences

“Whether in an advantageous position or a disadvantageous one, the opposite state should be always present to your mind.” Will it backfire? What is the plan then?

“If we wish to wrest an advantage from the enemy, we must not fix our minds on that alone, but allow for the possibility of the enemy also doing some harm to us, and let this enter as a factor into our calculations.” Something to consider throughout your case. Try to be objective and see the dispute from both sides and the judge's (or Commissioners') side.


“Secret operations are essential in war; upon them the army relies to make its every move.” Defendants may rely on surveillance, but the applicant's attorney should rely on frequent communication with the client to learn of any new developments in time to develop the evidence.
 

Don’t Reinvent the Wheel

Lastly, keep your strategy consideration in a templates-type folder, which is not sent to archives the way the client's folder is, as well as the client's folder. The templates folder can be organized by topic or purpose (To Depose or Not to Depose, to file for EH or SC or sit tight, to make a detailed Settlement Demand or not, etc.) Next time you need to consider the best strategy, you can refer to the notes or checklist. Keep these up to date by noting the outcome of a strategy. Renumber the choices as you learn from experience what works best. Avoid the predictable and knee-jerk reaction and think over your case afresh. If you are going “outside the box,” be prepared to defend your position. Keep up with the law and strategies proposed by the better practitioners. Follow the best practices if you want to earn a reputation for excellence and integrity. Become a clever fighter, one who not only wins, but excels in winning with ease.


What the ancients called a clever fighter is one who not only wins, but excels in winning with ease.
Marjory Harris, Esq.

Marjory Harris began practicing law in 1974 as a defense attorney and later became an applicants' attorney and a certified specialist. She continues to represent injured workers and mentors attorneys on big cases.

Reach Marjory at (888) 858-9882 or email: MarjoryHarrisLaw@gmail.com

www.workerscompensationcalifornia.com

 

 

 
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