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
Peņa and The Financial Times; from government,
banking, insurance and every other facet of world
commerce - to grow geometrically and stay around,
litigation must be (prudently) used and mastered.
I will, as briefly as I can, memorialize the salient
points of using litigation as a business tool.
Now before I start, I want it on the record, some 50%
of my 30-year track record of litigation has had
nothing to do with winning money, i.e., many lawsuits
have been over principle, some were to right a heinous
wrong such as slanderous remarks made about me; and
some were because an entity just needed a good
comeuppance and nobody else would carry the flag into
battle.
I, like Don Quixote, have fought many a windmill.
As you've heard me speak and write about, when
building your "Dream Team," you want Big Five
accountants and a large national or international firm
of lawyers - the best representation you can't afford!
Unlike the success-oriented fees I coach you to use
when facilitating transactions, no law firm will
litigate initially on this basis.
Perhaps if your case is especially strong, they will
do it on a contingency basis. Unfortunately, you will
be using, from time-to-time, litigation as a
positioning tool and your case may not be something
you can seriously leverage.
A year or two ago, being left with a pig-in-a-poke, I
had to litigate a case having specious facts at best
to support my desired outcome. Fortunately, our (my)
apparent lust for litigation was stronger than their
desire to fight a hard fight, so a reasonably good
settlement was finally arrived at.
Of course, during this process my good lawyers
counseled us, advising our case needed to be much
stronger, etc. Even with great lawyers, it is their
job to tell you the downside risks. Again, what
happens is you are often scared from pursuing your
case.
Good lawyers win so-so lawsuits. Great lawyers can win
lawsuits in which you have little or no chance to win.
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 dug me out of some pretty big black
holes.
I've dealt with them 10 and 20 years respectively.
They are worth every penny they charge!
Our judicial system works, but we grow up being afraid
of it. It's way out of our comfort zone so we preclude
ourselves from benefitting from it. Normally the cost
associated with it keeps us from using it.
In fact, I'm currently embroiled in litigation where
the ancillary players to the litigation have rights
which are being severely violated. A large group of
people could bring great pressure to bear, but they're
afraid because of previous bad experiences. They could
get what they deserve but aren't pursuing their best
interests.
There are lawyers who take on cases for humanitarian
reasons, if the case warrants, in business as well,
i.e., big major corporations taking advantage of the
system because of their size alone.
Why do you want to initiate the lawsuit so you are the
plaintiff? As the plaintiff, you pick where and when
the lawsuit is fought and probably ultimately
adjudicated.
This can be a huge advantage. And secondly, the
plaintiff is allowed two closing arguments, meaning
you (your lawyer) gets to address the judge and/or
jury once and then again after the defendants' closing
argument. This can also be very important.
= = = = = = = = = = = = = = = = = =
26 Unbreakable Rules of Litigation
= = = = = = = = = = = = = = = = = =
#1 CHOOSE YOUR BATTLES
#2 CHOOSE THE VENUE
#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 RELATIVES, FRIENDS, ET AL
#8 LISTEN TO EXPERIENCED LITIGANTS - LIKE ME!
#9 GENERALLY SPEAKING, DON'T WORRY ABOUT THE COST
(THIS IS VERY HARD!)
#10 BIG LAWSUITS ARE BETTER THAN SMALL ONES
#11 ELECT JURY TRIALS, AS OPPOSED TO A JUDGE ONLY
#12 PREPARATION (YOURS) IS EVERYTHING - KNOW THE FACTS
#13 PRACTICE DEPOSITIONS AND TRIALS
#14 IF YOU ARE THINKING OF 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 MOCK TRIALS (PRETEND TRIALS YOU DO IN FRONT OF
A HIRED JURY)
#18 DRESS SIMPLE AND CONSERVATIVELY IN COURT - NO
JEWELRY EXCEPT A WEDDING BAND; WHITE SHIRT, PLAIN TIE
AND DARK SUIT FOR MEN AND THE EQUIVALENT FOR WOMEN;
SHORT GROOMED HAIR FOR MEN
#19 DON'T LOSE YOUR TEMPER IN COURT - IT'S OKAY TO CRY
IF IT'S REAL
#20 HAVE YOUR SPOUSE IN THE FRONT ROW EVERY DAY.
CHILDREN ALSO IF POSSIBLE. OTHER FAMILY MEMBERS IN
SECOND ROW IS OKAY
#21 NO QUOTES TO THE PRESS OTHER THAN "WE BELIEVE IN
OUR CASE AND THAT IS WHY WE WENT TO COURT". YOUR WORDS
CAN EASILY BE TURNED AROUND.
#22 WHEN YOU BREAK FOR LUNCH OR A RECESS, REMEMBER
NEVER TALK IN PUBLIC ABOUT THE CASE - YOU NEVER KNOW
WHO MIGHT OVERHEAR
#23 WHEN YOU FIND A LEGAL TEAM THAT WINS, STAY WITH
THEM
#24 ALWAYS TELL THE TRUTH, NO MATTER WHAT. THE TRUTH
SHALL SET YOU FREE.
#25 DURING VIDEOTAPED DEPOSITIONS AND IN COURT, LOOK
AT THE CAMERA AND THE 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's a closed world of top litigators. Virtually all
big law firms have good to super-good lawyers. All big
law firms don't have great litigators. You don't
always need a great lawyer, but sometime if you grow
geometrically, you will.
Like any other project management, litigation must be
managed. Unfortunately, like speech-giving, you become
a great litigant by going through a learning curve.
I don't mean you have to get involved in losing
efforts (like making bad speeches so after some time
you make good speeches) to get 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 ad nauseam about
following your dreams. Life without dreams is like a
bird with a broken wing - it can't fly. I wrote this
newsletter because sometimes you'll need litigation to
follow your dream.
Go out and kick some butt, and don't let conventional
wisdom keep you from achieving your dream.
Conventional wisdom says Don't Litigate.
All high-performance people and the great
organizations of the last one hundred years did and do
litigate as I write this letter.
Don't litigate frivolously - but don't be afraid to
either.
To Your Quantum Leap,
Daniel S. Peņa, Sr.
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