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 Airways to Dan Peña and The Financial Times; From government, banking, insurance, and every other aspect of global commerce – to grow engineering and stay close, litigation must be used (wisely) and mastered.
I will, as briefly as possible, memorialize the salient points of using litigation as a commercial tool.
Now before I begin, I want to put it on the record, about 50% of my record over the 30 years of litigation has had nothing to do with making money, that is, many lawsuits have gone beyond principle, some of which have been to correct a grievous mistake like as slanderous notes about me; Some were because the entity only needed a good result and no one else would carry the flag in battle.
I, like Don Quixote, fought many windmill.
As you’ve heard me talk and write about, when building your “dream team” you want the Big Five accountants and a great national or international lawyer firm – the best representation you can’t afford!
Unlike the success-oriented fees I’ve been instructed to use when facilitating transactions, no law firm will initially litigate on this basis.
Perhaps if your case is particularly strong, they will do so on an emergency basis. Unfortunately, you will, from time to time, use litigation as a positioning tool and your case may not be something you can seriously benefit from.
A year or two ago, after being left with a pig in a poke, I had to file a lawsuit containing facts that are deceptive at best to support the desired outcome. Fortunately, our apparent lust for litigation was stronger than their desire for a fierce battle, so a reasonably good settlement was finally made.
Of course, during the process, good lawyers gave us advice, told us that our case needed to be much stronger, etc. Even with great lawyers, it’s their job to tell you about the downside risks. Again, what happens is that you are often too afraid to pursue your case.
Good lawyers win lawsuits. Great attorneys can win lawsuits where you have little or no chance of winning.
Three of my favorite litigants 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 Revitch and Williams in Los Angeles. All three got me out of some pretty big black holes.
I have dealt with them for 10 and 20 years respectively. They are worth every penny they charge!
Our judicial system is working, but we are afraid of it. It’s a way out of our comfort zone, so we prevent ourselves from taking advantage of it. Usually the cost associated with it prevents us from using it.
In fact, I am currently embroiled in a lawsuit where the players involved in the litigation have rights that are severely violated. A large group of people can put up with great pressure to bear, but are afraid because of past bad experiences. They can get what they deserve but do not pursue their best interests.
There are lawyers who take cases on humanitarian grounds, if the case calls for, in business as well, i.e. the big companies that benefit from the system because of their size alone.
Why do you want to file a lawsuit and you are the plaintiff? As the plaintiff, you get to choose where and when the lawsuit is brought and may eventually be adjudicated.
This can be a huge advantage. Second, the plaintiff is allowed to make closing arguments, which means that you (your attorney) must address the judge and/or jury again and again after the defendants’ closing arguments. This can also be very important.
26 Unbreakable Litigation Rules
#1 Choose your battles
#2 Choose the location
#3 Be the prosecutor
#4 You have the best acting
#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 litigators – like me!
#9 Speaking in general, don’t worry about the cost (that’s too hard!)
#10 Big cases are better than small ones
#11 Jury elections, as the judge only opposes
#12 Preparation (for you) is everything – know the facts
#13 Practical filings and trials
#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 Use Mock Trials (pretend your trials in front of a hired jury)
#18 Wear a simple and conservative dress to the court – no jewelry except for a wedding band; A white shirt and a plain tie and a dark suit for men and the like for women; short curly hair for men
#19 Don’t lose your stove in court – it’s okay to cry if it’s real
#20 Have your wife in the front row every day. Children too if possible. The other family members in the second grade are fine
#21 No press quotes other than “We believe in our cause and that is why we go to trial.” Your words can be easily flipped.
#22 When you’re resting for lunch or a break, you never remember to talk publicly about the can – you never know who might have more
#23 When you find a legal team that wins, stay with it
#24 Always tell the truth, no matter what. The truth will set you free.
#25 During the videotaped filings and in court, look at the camera and the jury. Rely on the language of the eyes.
#26 On proof of deposit/trial, if you don’t know the answer, say you don’t know the answer
It’s a closed world of high-profile litigants. Almost all major law firms have good to superior attorneys. Not all major law firms have great litigants. You don’t always need a great lawyer, but at some point if you grow an engineer, you will.
Like any other project management, litigation must be managed. Unfortunately, like giving a speech, you become a huge opponent by going through the learning curve.
I don’t mean that you have to get involved in losing efforts (like giving bad speeches, so after a while you get good ones) to get into a position that allows you to win in court. Large law firms will allow you to go further on the learning curve.
Quantum Leap to the point of nausea is all about pursuing 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 to sue to pursue your dream.
Get out there and kick back a bit, and don’t let conventional wisdom stop you from achieving your dream.
Conventional wisdom says don’t sue.
All the high-performing people and great organizations in the past 100 years have litigated and actually written this letter.
Don’t sue petty – but don’t be afraid of it either.
to your quantum leap,
Daniel S. Peña, Sr.