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From Bill Gates at the turn of the last century to John D. Rockefeller at the end of the last century; From Columbia Health Care founder Rick Scott to AT&T: from Richard Branson and British Airlines to Dan Peña and The Financial Times; In order to stay around and grow geometrically – from government, banking, insurance and every other aspect of world commerce – litigation must be (judiciously) used and mastered.
I will, as briefly as possible, recall the main points of using litigation as a business tool.
Now before we begin, I want it on record, some 50% of my 30 year track record of litigation has had nothing to do with winning money, ie many lawsuits have been above principle, some to a heinous wrong. to correct as to defamatory remarks made about me; and some were because a unit just needed a good retreat and no one would take the flag into battle.
I, like Don Quixote, have fought many a windmill.
As you’ve heard me speak and write when building your ‘Dream Team’ you want a Big Five accountants and a large national or international firm of lawyers – the best representation you can afford!
No law firm will initially litigate on the basis that I train you to use them to facilitate transactions, as opposed to success-oriented fees.
Perhaps if your case is particularly strong, they’ll do it on a contingency basis. Unfortunately, you will find yourself using 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, I had to prosecute a case containing the best facts I could to support my desired result. Fortunately, our (my) obvious craving for litigation was stronger than his willingness to fight an uphill battle, so a good settlement was eventually reached.
Of course, during this process we were counseled by my good lawyers, advised that our case needed to be made stronger, etc. Even with great lawyers, it’s their job to tell you about the downside risks. Then, what happens is that you are often too scared to pursue your case.
Good lawyers win so many cases. Great lawyers can win cases you have little or no chance of winning.
Three of my favorite litigators over the years have been Steve Sussman and Cyrus Marter IV of Sussman Godfrey in Houston, Dallas, Los Angeles and Seattle, and Tim Harris of Charleston Ravitch & Williams in Los Angeles. All three of them have pulled me out of some pretty big black holes.
I have worked with them for 10 and 20 years respectively. They are worth every penny they charge!
Our judicial system works, but we grow up afraid of it. It is out of our comfort zone so we stop ourselves from benefiting from it. Usually the cost associated with it keeps us from using it.
In fact, I am currently embroiled in litigation where the rights of the litigant ancillary players are being seriously infringed upon. A large group of people can bring a lot of pressure to bear, but they are afraid because of past bad experiences. They may be getting what they deserve but not pursuing their best interests.
There are lawyers who take on cases for humanitarian reasons, if the case warrants, even in business, ie large corporations taking advantage of the system because of their size alone.
Why do you want to start a lawsuit if you are a plaintiff? As the plaintiff, you choose where and when the case will be fought and possibly eventually a judgment will be given.
This can be a huge advantage. And second, the plaintiff is allowed two closing arguments, which means that you (your attorney) address the judge and/or jury once again after the defendant’s closing argument. This can also be very important.
26 Unbreakable Rules of Litigation
#1 Pick Your Battles
#2 Choose Location
#3 Be accusatory
#4 is 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, etcetera
#8 Listen to experienced litigants – like me!
#9 Generally speaking, don’t worry about the cost (it’s so hard!)
#10 Big Lawsuits Are Better Than Small Lawsuits
#11 Elected Jury Trial, as opposed to Judge Only
#12 Preparation (Your) Is Everything – Know the Facts
#13 Practice Statements and Tests
#14 If you can’t think of a better strategy, get a new lawyer (not right in my case)
#15 Never give up
#16 Don’t be intimidated by the process
#17 Use a mock trial
#18 Dress simple and conservative at court – no jewelery except for the wedding band; white shirt, plain tie and dark suit for men and the same for women; short hair for men
#19 Don’t lose your temper in court – it’s okay to cry if it’s real
#20 Put your spouse on the front lines every day. If possible children too. Other family members in the second row are fine
#21 No quotes to press other than ‘we believe in our case and that’s why we went to court’. Your words can easily be twisted.
#22 When you break for lunch or dinner, remember never to talk about the matter in public – you never know who might overhear
#23 When you find a legit team that wins, stick with them
#24 Always tell the truth, no matter what. The truth shall set you free.
#25 During videotaping 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 is a closed world of top litigators. Virtually all large law firms have good to super-good lawyers. Not all great law firms have great litigators. You don’t always need a great lawyer, but sometimes if you grow geometrically, you will.
Like any other project management, litigation must be managed. Unfortunately, like giving a speech, you go through a learning curve to become a great litigator.
I don’t mean that you have to engage in losing efforts (like giving bad speeches so that after a while you can give good ones) in order to be in a winning position in court. Large law firms will allow you to get past the learning curve.
The Quantum Leap Methodology talks over and over again about chasing 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 make your dreams come true.
Go out and kick some butt, and don’t let conventional wisdom stop you from achieving your dream.
Conventional wisdom says don’t litigate.
All the high-performing people and great organizations of the past one hundred years have been and have been in litigation as I write this letter.
Don’t sue frivolously – but don’t be afraid of it either.
for your quantum leap,
Daniel S. Pena, Sr.
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