Litigation with its myriad outcomes closely resembles war. Many of us also hold on to a mistaken belief that our legal system always upholds justice – but on closer observation, we would realise that there are obstacles to winning a case, based purely on our sense of righteousness. Foolproof contracts may become void at the revelation of misrepresentation, witnesses may find it difficult to express themselves – either because of a language barrier or fear, and judges, lawyers and the legal system may also become more caught up with procedures than in achieving justice for both parties.
So why would reading a book on war makes us think twice about going to court to resolve our disputes? How are the recorded thoughts of a man born more than 2000 years before still relevant today? Which particular lines should we ponder on – that may have greater relevance to our lives than merely for conquering our enemies?
“Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.”
Most people enter into litigation out of anger and frustration. In our dealings with those we trust, we depend on an understanding that is implied and not explicitly stated. When misunderstanding occurs due to a lack of communication, some of us are so hurt that we cease to think rationally. We say things we do not mean, we slam doors on relationships and we want to cause further damage in order to protect our pride.
A wise man once said, “The cheapest and most efficient manner of resolving disputes is through negotiations.” If two people cannot see eye-to-eye on a matter, they can also invite a neutral third party to intervene. This enables a shared solution that is not imposed, having a third party also creates a sense of fairness and the matter is private, so no one else outside of the matter needs to know the details of the dispute. Alternatively, arbitration can also be a way where both sides of the matter is heard before a neutral third party makes a binding decision in a private setting.
Are you able to resolve issues without fighting? If you are able to, then you have achieved supreme excellence.
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
We sometimes believe that we know the full details of the matter. We also believe we are familiar with the terrain (for e.g. the legislative and judicial landscape), the resources and circumstances surrounding our legal opponent. Unfortunately, most of our beliefs are mere assumptions. Have you done a thorough investigation on all persons involved and are you fully conscious of the strain such a case would place on you, your family, your corporation and its stakeholders? Have you looked at the matter from different angles and look at the risk analysis for what you are about to do?
Someone famously once said, that “to assume, is to make an ass out of you and me.” Speak to legal professionals who may do due diligence on your behalf, to your team members – and these may include the public relations team, your media advisers and also members of your family before you pursue litigation. Be prepared and prepare them for the battle ahead – especially if their lives would also be overturned by the hours necessary for the case to be presented and heard.
“No ruler should put troops into the field merely to gratify his own spleen; no general should fight a battle simply out of pique. If it is to your advantage, make a forward move; if not, stay where you are. Anger may in time change to gladness; vexation may be succeeded by content. But a kingdom that has once been destroyed can never come again into being; nor can the dead ever be brought back to life.”
A Pyrrhic victory refers to a hollow victory – in the case of a legal battle: a bad taste lingering long after the judgement has been passed. Some relationships are more important to us than having the final word. You may have the moral high ground, you may have the resources and you may win the case. However, what personal or public repercussions could you suffer as a result of winning this? Is the money, time and mental focus you are about to invest in winning the case be worth it?
One other consideration would be the reputational cost the case has on you and your corporation or family. The Oracle of Omaha famously said “It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.” Must you always be right? Would this matter in 10 years from now?
Could you think about winning in a different way?
“All warfare is based on deception.”
Hence, when able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near. Hold out baits to entice the enemy. Feign disorder, and crush him. If he is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.
What do your opponents know about you? Are they prepared for a case you bring against them? Are you able to bring about a swift victory for yourself or will your opponents deplete your resources before you are able to defeat them? Have you been building your case against them and is this the best time to respond? Do you have the element of surprise on your side? If not, what exactly is the advantage you hold?
If you do not have an advantage over your opponent, if you have not made thorough research into the legal landscape you are approaching, if you have not considered other forms of dispute resolution or if you suspect you are emotionally overwrought – take an hour off and seek consultation. You will find law firms who would give consultation at an hourly rate listed here.
This article is written by Adrian Mah from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
