Litigation

Business conflicts are inevitable. Negotiations and judicial mediation often do not bring the expected compromise and settlement. What remains is to enter into litigation or arbitration dispute. Just as "War is the continuation of politics by other means." (Carl von Clausewitz), so a trial is only a continuation of the dispute, but with the participation of a judge, being the decision-maker. We subject a business dispute to the assessment of a third party in the majesty of the judiciary and the law.

This one wins, who knows when to fight and when not to fight.

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Handling court cases is a complex organisational process. The idea of 18-HOLE GOLF COURSE illustrates this well:

It is commonly believed that the Old Course at St Andrews is responsible for this, where in 1764 it was decided that 22 holes were more difficult to take care of than 18… simplicity and economy. Considering that this happened in Scotland, this scenario seems very likely.

In 1882 the Prestwick Golf Club extended its course to 18 separate holes, and in 1891 Muirfield was built according to the “new 18-hole fashion”. The latter quickly pushed Musselburgh out of the Open and so the three clubs hosting the biggest tournament were 18-hole courses and the norm was born!

All this looks like a sheer coincidence, but in the end, it turned out quite well.

COURT 18-HOLE COURSE

choice between court or commercial arbitration
determination of the subject matter of the dispute between the parties
examination of all documentary and evidence material
determination of the claim to an investigation or defence
determination of one or two main points of contention
determination of the scope of evidence to be heard
examination of the legislation and judicial decisions
assessment of the risks of conducting the trial in the case
developing a strategy and tactics for handling the case
drafting a statement of claim or statement of defence
following the trial
dismissal of the opponent’s charges
submission of a settlement proposal
taking evidence from the hearing of witnesses and parties
hearing expert evidence
analysis of the evidence provided
communicating theses and conclusions of the proceedings to the court
court judgment

The end result should be a judgment awarding the whole of the claim, an order for payment or dismissal of the claim in its entirety.

Sun Tzu, a military strategist, wrote in his book “The Art of War”: He will win who knows when to fight and when not to fight. This is the basic principle for handling court cases by a lawyer. In addition to legal and substantive knowledge of the scope of court proceedings and substantive law, one should be a tactician, psychologist and negotiator.

A court lawyer needs to be at once a negotiator, a business psychologist and a war tactician. Every court paper, hearing a witness, quoting legal arguments, speaking in the courtroom and use of Cialdini’s classic persuasion principles should lead to victory. “He who is prudent and lies in wait for an enemy who is not, will be victorious.” Sun Tzu.

The court is not a good place to seek justice, after all Themis is blindfolded, but the art of judging is the ability of every lawyer in our law firm.