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Why Litigation Is Nothing More Than A Business Tool – 26 Unbreakable Rules of Litigation!
From Bill Gates at the end of the last century to John D. Rockefeller at the end of the last century; from Rick Scott, founder of Columbia Health Care, to AT&T: from Richard Branson and British Airlines to Dan Peña and The Financial Times; from government, banking, insurance and all other aspects of world trade – to grow geometrically and stay around, litigation must be (judiciously) used and mastered.
I will, as briefly as I can, recall the most important points related to the use of litigation as a business tool.
Now, before I begin, I want it on record, about 50% of my 30 years of litigation history has had nothing to do with winning money, ie many lawsuits have been over principle, some to right such terrible wrongs. as defamatory remarks about me; and some of it was because the unit just needed a good solution and no one else would carry the flag into battle.
I, like Don Quixote, have struggled with many windmills.
As you’ve heard me talk and write about, when building your dream team, you want Big Five accountants and a large national or international law firm—the best representation you can’t afford!
Unlike the success fees that I train you to use when promoting deals, no law firm initially sues on this basis.
Perhaps, if your case is particularly strong, they will do it on an emergency basis. Unfortunately, you will occasionally use litigation as a positioning tool, and your case may not be one you can seriously use.
A year or two ago I had to try a case that had at best misleading facts to support my desired outcome. Fortunately, our (my) apparent penchant for litigation was stronger than their desire to fight an uphill battle, so a reasonably good settlement was eventually reached.
Of course, during this process, my good lawyers advised us that our case should be much stronger, etc. Even with great lawyers, it’s their responsibility to tell you about the downside risks. Again, what happens is you are often afraid to pursue your case.
Good lawyers win so-so lawsuits. Great lawyers can win lawsuits where you have little or no chance of winning.
Three of my favorite litigators over the years are Steve Sussman and Cyrus Marter IV of Sussman Godfrey in Houston, Dallas, Los Angeles and Seattle and Tim Harris of Charleston Revich & Williams in Los Angeles. All three dug me out of pretty big black holes.
I have been dealing with them for 10 and 20 years respectively. They are worth every penny!
Our judicial system works, but we grow up fearing it. It is way out of our comfort zone, so we rule out the possibility of benefiting from it. Usually the cost involved prevents us from using it.
In fact, I am currently involved in litigation where paralegals have rights that are being seriously violated. A large group of people could create a lot of pressure, but they are afraid of previous bad experiences. They might get what they deserve, but not pursue their interests.
There are lawyers who take on cases for humanitarian reasons if the case warrants it, also in business, ie big big corporations take advantage of the system because of their size.
Why do you want to start legal proceedings so that you are the plaintiff? As a plaintiff, you choose where and when your lawsuit will be filed and, possibly, ultimately settled.
This can be a huge advantage. And second, the plaintiff is allowed two closing arguments, which means you (your attorney) must address the judge and/or jury once and then after the defendants’ closing arguments. It can also be very important.
26 Inviolable rules of legal proceedings
#1 PICK YOUR FIGHTS
#2 CHOOSE A VENUE
#3 BE A CLAIMANT
#4 IS THE BEST LEAVE
#5 LISTEN TO YOUR HEART
#6 DON’T LISTEN TO YOUR SICK STOMACH WHEN YOU’RE OUT OF YOUR COMFORT ZONE
#7 DO NOT LISTEN TO RELATIVES, FRIENDS, ETC
#8 LISTEN TO EXPERIENCED LAWYERS – ME TOO!
#9 DIGGING IN GENERAL, DON’T WORRY ABOUT COST (IT’S VERY HARD!)
#10 BIG ASKS ARE BETTER THAN SMALL
11. SELECTED JURY REVIEW, AS OPPOSED TO JUDGE ONLY
#12 PREPARATION (YOUR) IS EVERYTHING – KNOWING THE FACTS
#13 PRACTICE TESTS AND TESTS
#14 IF YOU THINK OF A BETTER STRATEGY, GET A NEW LAWYER (NOT TRUE IN MY CASE)
#15 NEVER give up
#16 DON’T BE AFRAID OF THE PROCESS
17. THROUGH TRIAL (USING EXAMINATIONS THAT YOU TAKE IN FRONT OF A HIRED JURY)
#18 DRESS SIMPLE AND CONSERVATIVE IN COURT – NO GAMES EXCEPT THE WEDDING BAND; WHITE SHIRT, PLAIN TIE AND DARK SUIT FOR MEN AND EQUIVALENT FOR WOMEN; SHORT COOKED HAIR FOR MEN
#19 DON’T LOSE YOUR CONTENT IN COURT – IT’S OKAY TO CRY IF IT’S REAL
#20 YOUR PET IS ON THE FRONT ROW EVERY DAY. ALSO FOR CHILDREN IF POSSIBLE. OTHER FAMILY MEMBERS IN THE SECOND ROW ARE FINE
#21 NO QUOTES TO THE PRESS OTHER THAN “WE BELIEVE IN OUR CASE AND THAT’S WHY WE ARE GOING TO COURT”. YOUR WORDS CAN BE WORTH CONVERTING.
#22 WHEN ON LUNCH BREAK OR BREAK REMEMBER NEVER TALK ABOUT THE CASE IN PUBLIC – YOU NEVER KNOW WHO MIGHT BE LISTENING
#23. WHEN YOU FIND A WINNING LEGAL TEAM, STAY WITH THEM
#24 ALWAYS TELL THE TRUTH, NO MATTER WHAT. THE TRUTH WILL SET YOU FREE.
#25 LOOK ON CAMERA AND JURY DURING VIDEOTAKING AND IN COURT. MAKE EYE CONTACT.
#26. WHEN GIVING AFFIDAVIT/COURT STATEMENT, IF YOU DON’T KNOW THE ANSWER, SAY YOU DON’T KNOW THE ANSWER
It is a closed world of leading litigation. Virtually all large law firms have good or very good lawyers. Not all big law firms have great litigators. You don’t always need a great lawyer, but sometimes if you grow exponentially, you will.
Like any other project management, litigation needs to be managed. Unfortunately, just like giving a speech, you become a great litigator as you go through the learning curve.
I don’t think you have to engage in losses (like bad talk to give good talk after a while) to be able to win in court. Big law firms will keep you ahead of the learning curve.
The Quantum Leap methodology speaks ad bauseam about how to follow your dreams. Life without dreams is like a bird with a broken wing – it cannot fly. I wrote this newsletter because sometimes you will need legal action to make your dream come true.
Get out there and kick some butt, and don’t let conventional wisdom hold you back from pursuing your dream.
Conventional wisdom says not to sue.
As I write this letter, all the high-powered people and great organizations of the last hundred years have been and are being litigated.
Don’t judge lightly, but don’t be afraid of it either.
To your quantum leap,
Daniel S. Peña, Sr
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