Selected Excerpts from the book:

Introduction: Winning Legal Wars

Part I - Assessing Litigation Capability

“Whether we are or are not capable of fighting a winnable war with our adversary is a function of two simple facts. First, we must decide whether we are ‘inherently’ capable of fighting a war. A good example would be a man with one leg contemplating if he can win the next national marathon. Second, we must also decide whether we are capable of fighting a war given the nature of the adversary. With reference to the illustration already used, this would be the equivalent of someone of poor athletic ability wondering if the other athletes in the marathon are of such ability that it would be a waste of time to run the distance.”

Conditions Precedent 1: The Balance of Internal Power

“Fighting strength flows from conviction: it is when organizations act cohesively with conviction that victory is gained. It is impossible to fight a war when half of you say ‘we need to fight’ and the other half say, ‘maybe there is another way’.”

Condition Precedent 2: The Governing environment

“The fate of the war will be determined not merely by the internal power of the two warriors but equally it will be determined by the larger forces impacting the theatre of war...the governing environment. …Thus, the aggressor is thwarted by rain; the besieged defender is protected by it.”

Conditions Precedent 3: The Occupation of the Field

“Thus, it is seen that in any complex scenario, it is by no means preordained that one party shall be a natural aggressor and another a natural defender. In many circumstances, both parties have the potential to institute hostilities and occupy the controlling terrain. …To occupy the field is to gain a great advantage, and the effort necessary to neutralize that advantage is substantial.”

Condition Precedent 4: The Leadership

“Without leadership, almost any group of men anywhere is reduced to a confused mass of milling souls who cancel each other’s effort out.”

Condition Precedent 5: Organization and its Management

“Shorn of all rhetoric, the art of litigation is ultimately the art of employing all available resources in the most efficient way, in the widest sense.”

Conclusion: Litigating to win

“When warriors ask themselves if they are going to be fighting a winnable war, they really ask themselves if they can so configure their strategy that the war becomes winnable. Every legal situation throws up multiple strategic options. Some of these options can demonstrably result in victory, some not.”

Part II - Litigation Preparation: the Five Preparations

“Between the decision to fight and the commencement of litigation lies a critical period of preparation, a period when the potential litigant prepares for full-blown conflict. Wars are not started on a whim, they are not fought casually, and they are not won without great effort.”

Rule 1 - Planning amorally

“Wars are not for the squeamish. …They are also difficult to win. They are impossible to win if we also burden ourselves with additional moral considerations which have no relevance to the business of fighting.”

Rule 2 – Planning the defence

“There is no such thing as absolute unconquorability, complete invincibility. Every litigant must … assess its ability to absorb that loss or damage.”

Rule 3 - Planning Defensive Litigation

“Parties contemplating or facing litigation proceed from a natural presumption that all litigation has a finite life with a beginning a middle and an end. This is true only in an obscure theoretical way.”

Rule 4 - Planning Attack Timing

“War gaming teaches us that it is not in the ability to attack alone that victory is gained: it is in attacking with immaculate timing that victory is secured.”

Rule 5 - Planning for Stalemates

“Thus it is seen that there are occasions aplenty when litigation cannot be won. What can be done is to secure clean advantage and thereafter to focus complete attention on perpetuating the stalemate.”

Conclusion: Act Immaculately

“In all that litigants do, and all that they perceive, cold rational planning must be the underlying theme. Fortunes change, life ebbs and flows, but cold rationality must never be forsaken.”

Part III - The Seven Strategies

“Strategy is the means by which the war machine is deployed and victory achieved. As language binds a culture, culture binds society, and society binds a nation, so strategy binds a war machine, bringing relentless power and compelling force to bear on the endeavour.”

Rule 1 - Match magnitude of engagement to resources

“We have seen that litigation, if viewed correctly and in perspective, is not the final resolution of an essential conflict of cultures or philosophies: litigation is a tool to achieve other ends, be they business or personal.”

Rule 2 - Seek Quick Results

“The litigant who rushes into litigation without a clear recognition of the inherently destructive nature of war runs the risk of suffering that destruction. … In the result, every litigation must be short, focused, self-limiting, and decisive.”

Rule 3 - Optimize logistics

“Logistic efficiency is a matter of strategic planning.”

Rule 4 - Avoiding costly annihilations

“Thus, the true goal of war, and litigation for that matter, is subjugation, not death. The best warrior is not he who fights and wins all the time but one who wins all the time without or with very little fighting.”

Rule 5 - Priority of targets

“The secret of a good war strategy is to make continual war expensive and unremunerative for the adversary without ever getting the adversary personally involved in it. The strategy is good when the adversary is aware that there is no business case to go on fighting. A strategy that compels an adversary to fight for its very survival is generally a bad strategy.”

Rule 6 - Factor Force Levels

“Litigation strategy is not a matter of inflexibly attacking when you can and defending when you can’t attack. Indeed, there are occasions when it may well be the opposite.”

Rule 7 - Avoiding Entanglements

“Litigation is a complex web of factors, actions, people and issues. It is very easy for a litigant to get ‘sucked into’ a situation it cannot control, complexities it cannot comprehend. …It must secure that it does not get entangled in a web it cannot extricate itself from, a fight it cannot disengage from, a war it cannot finish.”

Conclusion: The myriad colors of strategic choices

“Litigation strategy is … a passionate worship of an elusive goddess. …The difficulty with strategic rules is that they are never immutable. The secret is to know when a rule is immutable and when it is not. It is to know when to change the pitch.”

Part IV - The Seven Tactics

“After all, litigation strategy is the overall manner in which the stage is set for war and then rolled out. … It is not enough to have the right war strategy: it is also necessary that the correct battle tactics be employed to project the war strategy.”

Rule 1 -The orthodox and the unorthodox

“Orthodox tactics are tried and tested and their very value lies in their proven quality. To dispense with orthodox tactics is to risk all. On the other hand, unorthodox tactics are difficult to predict and therefore difficult to combat. But unorthodox tactics are risky. …Orthodox tactics yield substantial benefit but victory is possible only through the unorthodox.”

Rule 2 - Seize and Control Initiative

“He who controls the initiative controls the war.”

Rule 3 - Control the Enemy’s Response

“Anticipation and pre-emption are necessary if the litigant is not to suffer defeat, but victory is only possible if the litigant can in effect dictate when, how and to what extent the opponent will fight.”

Rule 4 - Exploit the momentum

“One of the hardest lessons that litigants learn at their peril is that it is not in the substance of their case alone that victory is achieved, it is the momentum they are able to generate and in the impact their strong points have on the opponent’s case that victory is achieved.”

Rule 5 - Employ the Blitz

“It does not matter what the absolute forces ranging on either side add up to, what matters is how much resource and legal attack the litigant can throw at a focused narrow point in order to overwhelm the enemy.”

Rule 6 - Be unpredictable

“There is no such thing as rigid strategic configuration in litigation. The ebb and flow of strategy and tactical action flows with the terrain.”

Rule 7 - The rule of deception

“To achieve strategic power, the litigant must so conduct itself that it is not capable of being anticipated and pre-empted by the opposition.”

Conclusion - The paramount rule of war

“Anger and frustration have no role in litigation. The night turns to day but acts that have been done, cannot be undone. …This is the secret of a successful personal and professional life. It is also the secret of good litigation.”