Friday, July 3, 2009

Divorce, Strategy and Sun Tzu

Every case needs a strategy. This includes divorce case. Strategy requires knowing the client's goals and the law.

But who is Sun Tzu? An ancient Chinese general who wrote The Art of War. A book I suggest anyone and everyone to read. For more about Sun Tzu, take a look at this Wikipedia article.

The South Carolina Family Law Blog's Sun Tzu and the Art of Divorce puts all this into perspective:

Successful Family Court litigation is a result of planning, stategy, and effort on the part of both the attorney and his client. Like one of Sun Tzu's generals, the better attorneys know how and when to use misdirection and baiting to prosecute their clients' case. For instance, on cross-examination or in a deposition, it is not uncommon to give the opposing party just enough rope to allow that party to hang himself.

Both the attorney and his client should always keep the original end goal at the forefront as they proceed through the stages of litigation. No one, especially a Family Court litigant, ever benefits from fighting just for the sake of fighting ("prolonged warfare"). When children are involved, such conduct can result in emotional damage, or in extreme cases, hatred or resentment toward one or both parents.

Too many times, the parties (and sometimes even their attorneys) will get so caught up in trying to "win" the case that they lose sight of what is really important, the original purpose for going to Court (Sun Tzu's "great object of victory"). Having an experienced attorney can be invaluable, as we are able to use our perspective, objectivity, and experience to know the best way to wage the campaign. An experienced attorney knows all too well and will certainly advise his client that no one ever "wins" in Family Court litigation.

Which also brings to mind a conversation last week with a person who became a client. He wanted to know my win-loss ratio. A question I always dread because of lawyers think of this differently than do non-lawyers. Do I get the legally logical result? More often than not. Do we get the solution that the client wants? I think that is a far more complex question but comes down to whether the client wants what they say they want and then whether they get what they really want.

For me, the essential point of Sun Tzu is that one cannot fight all fights at the same time. That is a sign of no clear goal and strategy is how to reach that goal. Clients need to listen to what the law allows (what we lawyers call remedies), understand the facts of the case, and think hard of what they want. Clients then need to think hard on their real goals.


T.A. P said...

To make my point, I once told a client who asked for my win rate: "Every time I've petitioned for a divorce, the court has granted it. That's 100%." That helped him understand that the question is a bit misplaced.

Sam Hasler said...

Good point.