From Bill Gates at the end of the last century to John D. Rockefeller at the end of the previous 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 any other facet of world trade: to grow geometrically and sustain itself, litigation must be used and mastered (wisely).
As briefly as possible, I will recall the highlights of the use of litigation as a business tool.
Now, before we start, I want the record to be recorded, about 50% of my 30-year litigation history has had nothing to do with making money, that is, many lawsuits have been based on principles, some were to correct an error as egregious as slanderous comments made about me; and some were because an entity only needed a good payment and no one else would carry the flag into battle.
I, like Don Quixote, have fought more than one windmill.
As you have heard me speak and write, in creating your ‘Dream Team’, you want accountants from the Big Five and a great national or international law firm, the best representation you cannot afford!
Unlike the success-oriented fees that I advise you to use when facilitating transactions, no law firm will initially litigate on this basis.
Perhaps if your case is especially strong, they will do so on a contingent basis. Unfortunately, you will use litigation as a positioning tool from time to time and your case may not be something you can seriously take advantage of.
A year or two ago, being left with a pig in a punch, I had to litigate a case with misleading data at best to support the desired outcome. Fortunately, our (my) apparent lust to litigate was stronger than his desire to fight a tough battle, so a reasonably good settlement was finally reached.
Of course, during this process my good lawyers advised us, advising that our case should be much stronger, etc. Even with great lawyers, it’s their job to inform you of downside risks. Again, what happens is that you are often afraid to move forward with your case.
Good lawyers win regular lawsuits. Great attorneys can win lawsuits where you have little or no chance of winning.
Three of my favorite litigators over the years are Steve Susman and Cyrus Marter IV of Susman Godfrey in Houston, Dallas, Los Angeles and Seattle and Tim Harris of Charleston Revich & Williams in Los Angeles. All three have pulled me out of some pretty big black holes.
I have taken care of them for 10 and 20 years respectively. They are worth every penny they charge!
Our judicial system works, but we grow up fearing it. It is outside our comfort zone, so we exclude ourselves from benefiting from it. Normally, the cost associated with it prevents us from using it.
In fact, I am currently involved in litigation in which the auxiliary parties to the litigation have rights that are being seriously violated. A large group of people could exert great pressure, but they are afraid due to previous bad experiences. They may get what they deserve, but they are not pursuing your best interests.
There are lawyers who take cases for humanitarian reasons, if the case warrants it, also in the business field, that is, large corporations that take advantage of the system only because of its size.
Why do you want to sue so that you are the plaintiff? As a plaintiff, you choose where and when the lawsuit is fought and will likely eventually be resolved.
This can be a great advantage. And second, the plaintiff is allowed two closing arguments, which means that you (your attorney) can address the judge and / or jury again and again after the defendants’ final argument. This can also be very important.
26 unbreakable litigation rules
# 1 CHOOSE YOUR BATTLES
# 2 CHOOSE THE PLACE
# 3 BE THE PLAINTIFF
# 4 HAVE THE BEST REPRESENTATION
# 5 LISTEN TO YOUR HEART
# 6 DON’T LISTEN TO YOUR SICK STOMACH WHEN YOU’RE OUT OF YOUR COMFORT ZONE
# 7 DON’T LISTEN TO FAMILY, FRIENDS, ET AL
# 8 LISTEN TO EXPERIENCED LITIGANTS – LIKE ME!
# 9 SPEAKING IN GENERAL, DON’T WORRY ABOUT THE COST (THIS IS VERY HARD)
# 10 BIG DEMANDS ARE BETTER THAN SMALL
# 11 CHOSEN JURY TRIALS, OPPOSED ONLY TO ONE JUDGE
# 12 PREPARATION (YOURS) IS EVERYTHING – KNOW THE FACTS
# 13 PRACTICAL DEPOSITIONS AND TESTS
# 14 IF YOU ARE THINKING ABOUT A BETTER STRATEGY, GET A NEW LAWYER (NOT TRUE IN MY CASE)
# 15 NEVER GIVE UP
# 16 DON’T BE INTIMIDATED BY THE PROCESS
# 17 USE FALSE EVIDENCE (FAKE TRIALS YOU MAKE IN FRONT OF A HIRED JURY)
# 18 DRESS SIMPLE AND CONSERVATIVE IN COURT – NO JEWELRY EXCEPT A WEDDING BAND; WHITE SHIRT, PLAIN TIE AND DARK SUIT FOR MEN AND EQUIVALENT FOR WOMEN; CARE HAIR FOR SHORT MEN
# 19 DON’T LOSE YOUR TEMPERATURE IN COURT – IT’S OK TO CRY IF IT’S REAL
# 20 HAVE YOUR SPOUSE IN THE FIRST ROW EVERY DAY. CHILDREN ALSO IF POSSIBLE. OTHER FAMILY MEMBERS IN THE SECOND ROW IS OK
# 21 THERE ARE NO PRESS QUOTES THAT ARE NOT “WE BELIEVE IN OUR CASE AND THAT IS WHY WE WENT TO COURT.” YOUR WORDS CAN TURN EASILY.
# 22 WHEN YOU GO OUT FOR LUNCH OR RECREATION, REMEMBER TO NEVER SPEAK IN PUBLIC ABOUT THE CASE – YOU NEVER KNOW WHO COULD LISTEN
# 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 DURING VIDEO-RECORDED DEPOSITIONS AND IN COURT, WATCH THE CAMERA AND JURY. MAKE EYE CONTACT.
# 26 WHEN TESTIFYING IN A DEPOSITION / TRIAL, IF YOU DON’T KNOW THE ANSWER, SAY YOU DON’T KNOW THE ANSWER
It is a closed world of the best litigants. Virtually all large law firms have good to super good attorneys. Not all great law firms have great litigants. You don’t always need a great lawyer, but at some point, if you grow geometrically, you will.
Like any other project management, litigation must be managed. Unfortunately, just like giving speeches, you become a great litigator by going through a learning curve.
I don’t mean that you have to get involved in wasting your efforts (like making bad speeches so that after a while you make good speeches) to be in a position to win in court. Large law firms will allow you to get ahead of the learning curve.
The Quantum Leap methodology talks endlessly 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 litigation to follow your dream.
Get out there and kick some ass, and don’t let conventional wisdom stop you from achieving your dream.
Conventional wisdom says don’t litigate.
All the high performers and great organizations of the last hundred years litigated and litigated as I write this letter.
Don’t litigate frivolously, but don’t be afraid either.
At its quantum leap,
Daniel S. Peña, Sr.