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Legal Samurai - unsheathing the Art of Law

PJ Veldhuizen
By PJ Veldhuizen
20 Sep 2023
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In the legal arena, as in warfare, strategic thinking and wisdom are essential components of success.

Sun Tzu’s Art of War, estimated to have been written by the Chinese general between 475 and 221 BCE, is based on the fundamental premise that war should be avoided with diplomacy. 

If war can’t be avoided, it should be fought smartly, keeping both strategy and psychology in mind to limit the damage and the waste of resources. 

Based on the principles of Tao, going into battle should be seen as a last resort, when other options have run out. In fact, one theory of the book is that heading into battle is already admitting a type of defeat.

Perhaps many attorneys fall in love with their career path by admiring the door-swinging dramatic antics of the likes of Alan Shore (Boston Legal) or Ally McBeal, or the not-very Tao, Denny Krane. 

Drawing inspiration from a more credible source, I like to refer to “The Art of Law”, an adaptation of the same ancient teachings of Sun Tzu in the legal practice. 

Knowing when to retreat, when to wait, when to attack, when to negotiate, when to mediate and when to surrender. 

Lawyers who master these principles are better equipped to navigate the legal battlefield, achieving favourable outcomes for their clients while minimising damage.

1. Strategy and planning


In both war and law, strategic planning is paramount. Sun Tzu emphasises the importance of careful preparation and the same holds for legal practitioners. 

A lawyer’s strategy begins with understanding the lay of the legal battlefield, knowing the strengths and weaknesses of their case, and anticipating their opponent’s moves. 

Just as a general assesses the terrain before engaging in battle, a lawyer must thoroughly evaluate the legal landscape before proceeding.

2. Choosing the right battles


Oh, how wonderful the world would be if we all wore Sun Tzu’s shades. 

Unnecessary conflict and advocating for the avoidance of war when possible, will not mean we will be out of work. One only has to look at the strained court roll to be reassured. 

A skilled lawyer knows that not every dispute requires litigation. 

Recognising when to negotiate, mediate or seek alternative dispute resolution methods will lead to a more favourable outcome without the costly and protracted battles of the courtroom.

3. When to retreat


Sun Tzu stresses the importance of knowing when to retreat, as sometimes a strategic withdrawal can lead to a stronger position later. 

In law, this concept translates to recognising when to concede minor points to gain a more substantial advantage in the overall case. 

The proverb, “Give them enough rope, and they will hang themselves”, comes to mind. A well-timed tactical retreat can prevent an all-out legal war and by adopting a strategic approach of observation and patience – by granting your opponent the freedom to act – you may uncover valuable information, patterns of behaviour, or evidence that can be used in your client’s best interest.

4. Patience as a virtue


Both in war and law, patience can be a potent weapon. 

Sun Tzu encourages patience to exhaust the enemy’s resources and morale. Likewise, lawyers must exercise patience, waiting for the right moment to strike or negotiate. 

Rushing into legal battles can lead to unfavourable outcomes, while astute waiting can turn the tide.

5. Precision strikes


Sun Tzu’s emphasis on precise strikes aligns with the legal practice’s focus on strategically choosing when to attack. 

Lawyers should not engage in frivolous litigation but rather launch calculated and well-planned offensives when the time is right. 

A precisely timed lawsuit or legal action can be a game-changer.

6. Negotiation and diplomacy

“The Art of War” acknowledges the value of diplomacy, and lawyers must recognise its importance too. 

Negotiation and diplomacy can often yield solutions that litigation cannot. 

Lawyers who excel in negotiation can resolve disputes efficiently while preserving relationships and resources.

7. Mediation as a middle ground


Mediation, much like Sun Tzu’s emphasis on compromise, offers a middle ground for parties in dispute. 

A skilled mediator can help both sides find common ground and reach mutually acceptable agreements. This approach can save time, costs and emotional strain, aligning with the principle of minimising damage. 

In South Africa, individuals are compelled to declare that they have considered mediation as a solution to any forthcoming legal matter before commencing formal litigation. 

Mediation is considered a time- and cost-effective means whereby parties to a dispute can appoint a qualified neutral third party to act as mediator to facilitate an agreed settlement.

8. Surrender as a strategic choice


Sometimes, surrendering strategically can be the wisest choice. 

Accepting a settlement and not stubbornly proceeding for the sake of pride and/or ego when the odds of success in court are slim can save more than money. 

Taking an honest look at your options may reveal that surrendering in such situations can protect the client’s interests and resources, and maintain your reputation.

In the legal arena, as in warfare, strategic thinking and wisdom are essential components of success.

“The greatest victory is that which requires no battle.” DM

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