Transcript The future King David

Pursuits for today, this week, this
month, this year, and for a lifetime
• To meet various needs and desires.
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Maslow’s hierarchy of needs
• Abraham Maslow was a
psychologist who in 1954 created
the hierarchy of human needs.
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Humans are goal-seeing beings
• Maslow’s hierarchy translates into goals in our lives.
• Victor Frankl--we must have a goal or purpose. (“Man’s Search
for Meaning”)
• Much of our goal-seeking involves negotiation with others.
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Negotiation
• Rule # 1: People want what they can’t have and scorn that
which they can have. Don’t be too eager.
• Move slowly, patiently, are prepared to walk away (Rule # 1).
• Stressful thus valuable-avoid “haggle-free” promotions.
• Do your homework.
• Take the initiative, dictate the rules, and win in advance.
• Have a goal in mind and a plan to reach it. (Slide 5)
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• The best protection and the best way to get what we
is
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to bring something of value to the table.
• Buy low, sell high, and shoot for the moon!
• Push their "hot buttons"-their primary wants, fears, beliefs.
• NEVER accept the first offer.
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Sample mediation plan
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Power of words
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Our words are the main tools of negotiation.
God created the universe with his spoken words. Ge. 1
“The tongue has the power of life and death.” Pr 18:21
Disraeli: “With words we govern men.”
Understatement adds credibility- say it once, say it clearly, say
it simply.
• Characterization is effective–“He's in the drunk tank.”
• Tell stories-the oldest and best form of information sharing.
• Ask, How can I most clearly, precisely, and persuasively
express my thought?
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Reality
• "Be as innocent as doves and as shrewd as a serpent.” Mt.
10:16 (There are wolves in the world).
• Conventional wisdom is often wrong.
• Knowledge is constantly changing.
• Every rule has its exceptions and its opposites.
• Question everything--especially assumptions, promises,
assurances, bare statements, news stories.
• “The race is not to the swift” (Ecc 9:11) and life is not fair.
– OJ Simpson was acquitted of murder, yet Andrea Yates
drowned her 5 innocent boys.
• Grasping reality requires an accurate understanding of human
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nature.
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Human nature
• #1 rule of human nature is selfinterest.
• What is their interest?
• Why did they say/do that?
• Read between the lines--what
is not said? What is implied?
• People’s moral standards can be
flexible depending on
circumstances.
• Human nature requires written
agreements to clarify the
parties’ intent and to give it
“teeth.”
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Get it in writing
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You do the writing.
"Understanding," not a “contract.”
Put other party's benefits first.
Spell out specifically your benefits and how you will be paid.
Strive for clarity through brevity, simplicity, and re-writing.
Understatement adds credibility-avoid excessive ALL CAPS,
bold, and underlines, adjectives, and adverbs.
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Definitions of strategy
• Sir Lawrence Freedman, author of “Strategy: A History”:
“Strategy is the art of creating power.”
• Laird: Strategy is the product of a mental activity calling upon
many aspects of human intelligence and character—
observation, experience, analysis, judgment, foresight,
planning, flexibility, and mental toughness.
• Laird: Strategy-making involves using these traits to
coordinate ways, means, and their timing to reach our goals.
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Why is strategy important?
• There is “hardball” competition for
limited resources in the world.
• Nature is “red in tooth and claw”-Alfred
Lord Tennyson
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How important is strategy?
• Churchill: "Without victory
there is no survival."
• Sun Tzu, “The Art of War”:
"Strategy is a matter of vital
importance to the state; the
province of life or death; the
road to survival or ruin. It is
mandatory that it be
thoroughly studied.“
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Every competitive activity is a
microcosm of life
• War, politics, business, and litigation are competitive and
adversarial endeavors which demand good strategy.
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Strategy is like a lever
• Archimedes: “Give me a lever long enough and a
fulcrum on which to place it, and I shall move the
world.”
• Lee Iacocca tells how a corporate raider “further
removed” from the means of production earned 12x
more from the takeover target Goodyear in 2 months
than Goodyear’s CEO had earned in 40 years with the
company. (“Greenmail”)
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The future King
David’s strategy
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AVOID STRENGTH AND
STRIKE WEAKNESS
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Avoided Goliath’s strengths
• Deadly up close because of
experience, size and weapons.
Attacked Goliath’s weaknesses
• Arrogance
• Anger that a boy would defy him
• Surprise--did not expect David’s
way of attack.
With his own strengths
• Skill with sling
• Confidence
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• Faith in God
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Litigation phases
• Each phase and the case overall have their own strategy and
tactics.
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Choice of forum and venue.
Pleadings to set forth claims and defenses.
Depositions and written discovery to discover the facts.
Pretrial motions.
jury selection.
Opening statement.
Direct and cross-examination.
Evidence admitting and exclusion.
Closing argument.
Post-verdict motions.
Appeals.
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Two views of litigation
• Conventional view of litigation: Judge applies the “law” to the
“facts” to reach proper decision.
– Uncertainty re the “law” and the “facts”
• Strategic view of litigation: Adversarial advocates use strategy
and tactics to win their case.
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The importance of strategy in
litigation
• In Pennzoil v. Texaco, Texaco’s strategic blunders yielded a $10
billion verdict and bankrupted the company.
• Background facts.
– Failed to file prompt Answer, thus allowing Pennzoil to dismiss DE case
and re-file in TX.
– Angered the trial judge with a Motion to Disqualify.
– Failed to rebut Pennzoil’s evidence of damages.
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Effectiveness is to efficiency as
100 is to 1
• Peter Drucker: Focus on doing the right
thing (being effective), not on doing
things right (efficiency).
– Texaco’s strategic blunders accounted for
almost all of the final result. The thousands of
hours otherwise spent counted for very little.
• Next focus on the “crux of the issue”, that
which determines success or failure.
• Do what we do best and let others do the
rest (delegate).
• Napoleon-The more difficult something
is, the more precious.
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Objects of attack in The Art of War:
• “What is of supreme importance in war is to
attack the enemy's strategy.”
• “Next best is to disrupt his
alliances.”
• “The next best is to attack
his army.”
• “The worst policy is to
attack cities.”
• Comparable to ROI analysis
in business.
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Attacking a strategy (thinking) is
less costly than attacking cities.
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Attack the enemy’s strategy
• In Laird, et al. v. Rimrock, et al., Plaintiffs’ strategy was
to show that Prime was an agent of Rimrock. Proof of
agency was strong, including Rimrock’s earlier
admission that, “Prime is taking the leases for us.”
• Despite the evidence, Rimrock vigorously contested
agency, thus attacking Plaintiffs’ strategy and causing
Plaintiffs to expend resources on this issue.
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Attack the enemy’s alliances
• In Rimrock, Rimrock and Prime were allies and co-Defendants.
• As part of a settlement, Prime executed an Agreed Statement
of Facts strongly supporting Plaintiffs’ case against the
primary Defendant Rimrock.
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The need for allies
• "Plans fail for lack of counsel,
but with many advisers they
succeed." Pr. 15:22
• The Art of War: "If you do not
seek out allies and helpers, then
you will be isolated and weak.”
• “Disrupt the enemy’s alliances.”
• Fortune Magazine: "Alliances
have become an integral part of
contemporary strategic
thinking."
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Attack the enemy’s army
• The litigant’s army is the party, his attorneys, experts, and
evidence.
• In a recent case, on legal various grounds, we:
– Subpoenaed law firm records to show possible unethical
collusion by the attorneys.
– Filed a Motion to Disqualify an opposing attorney.
– Filed a Motion to Bar a party Plaintiff from testifying.
– Filed a Motion to Strike Plaintiff’s key evidence.
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Attack the enemy’s cities as a last
resort
• In litigation “cities” are the opponent’s strongest points:
examples are clear liability, clear damages, large financial
resources, a famous name.
• We may attack “cities” in order to (a) diminish their strength,
(b) divert attention from our main attack or (c) force the
opponent him to expend resources.
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Evaluation
• The Art of War: "If you know yourself and your enemy you will
not be imperiled in a hundred battles."
• Know industry trends and the enemy’s and your own
interests, goals, strengths, weaknesses, and plans.
• Rothschilds used carrier pigeons to learn of Napoleon’s
defeat.
• Gordon Gekko: “The most valuable commodity I know of is
information.”
• “Loose lips sink ships”-Information is valuable to the extent it
is not widely known.
• In determining our goals we must match capabilities with
objectives.
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Decide on the goal
• Realistic yet bold.
• Few things are "impossible."
– The world does not have perfect information--science
constantly changing.
– The mere fact that we can conceive of something is some
evidence that it may be within our reach; otherwise it would not
have occurred to us.
– The reasons something seems "impossible" are often precisely
why and how it can be achieved. Why because you know there
are compensating factors for every difficulty. How because you
know exactly what must be overcome.
• Clear and specific.
• Exclusive because concentration of resources is vital.
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Plan
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Work backwards.
Imagine scenarios and ways that the goal can be reached.
List obstacles and solutions.
Imagine, prepare for, and
look for “breaks.”
• Set a deadline to spur action
and because time is finite.
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Action
• Einstein: “Nothing happens
until something moves.” We
must ACT.
• Act NOW because time is finite
and things change.
• Napoleon: “God helps those
who help themselves.”
• Acting, not reacting, allows us
to control the flow of events,
shape the environment, and set
the ground rules.
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“A man of action”-
Churchill
Effects of actions
• Direct-exercise has direct benefits on health and fitness.
• Displacement-exercise displaces non-productive activity like
watching the Simpsons.
• Affinity-exercise tends to attract similar activities—eating
better, getting checkups.
• Inertial- exercise make it easier to take same action again.
• Synergistic- exercise combines with other actions and
circumstances in positive ways.
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Avoid strength, strike weakness
• The Art of War-"The nature of water is that it
avoids heights and hastens to the lowlands.”
• A lion does not chase the fastest antelope; he
goes after the slowest one.
• Seek the best combination of weakness and
benefit.
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There is always a weakness
• Rimrock hired the country’s top expert in Oil & Gas law to
testify about lease validity. But he admitted under crossexamination that he:
– Never worked as a landman.
– Never took an Oil & Gas lease from a landowner.
– Never entered into an Oil & Gas lease personally.
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Ironically, and typically, the fact that he was the top academic
expert was the reason for his weakness in lacking real-world
experience.
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Concentration
The ideal is to concentrate all resources, on one thing, at the
crux of the matter, at a weak spot, in a short time.
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BOLDNESS is a weapon
• In a meek and conforming
world, most people will not
oppose a bold thought, plan,
or action.
• Example: “The Israelites
marched out boldly in full view
of all the Egyptians.” Ex. 14:8.
The righteous are as bold as
a lion…who retreats before
nothing. (Pr. 28:1, 30:30).
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Speed slaughters the competition
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Sun Tzu said, “Speed is the essence of war.”
Time and life are finite.
Circumstances change, opportunities are fleeting.
If we wait the enemy can prepare against our plans.
If we wait our resources and energy are exhausted.
Speed concentrates more power in a given time.
Speed shocks and surprises the enemy--"Shock and Awe.”
Advance preparation is required for speed in decisionmaking/reacting. (BU’s rule)
• “To every thing there is a season, and a time to every purpose
under the heaven.” Ecc 3:3
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Get inside the enemy’s decision loop
• The OODA loop is an important concept
in litigation, business, and military
strategy. Decision-making occurs in a
recurring cycle of observe-orient-decideact. A party that can process this cycle
with greater speed can "get inside" the
opponent's decision cycle, rendering him
unable to respond effectively.
• This indirect strategic concept is in
sharp contrast to direct “head on” actions.
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Balance and compensation
• Newton’s third law-for every action, there is an equal and
opposite reaction.
• For every action, there is a void (opportunity) created by
actions not taken.
• For every benefit, there is a cost.
• For every strength, a weakness.
• For every adversity, a potential benefit.
• Churchill: “A pessimist sees the difficulty in every opportunity;
an optimist sees the opportunity in every difficulty.”
• In the Rimrock lawsuit the strength inherent in our dozens of
clients became a weakness when the other side filed dozens
of simultaneous motions for summary judgment.
• Gov. Greg Abbott
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All warfare is based on deception
• The Art of War: "The enemy must not know where I intend to give battle.
For if he does not know where I intend to give battle he must prepare in a
great many places. And when he prepares in a great many places, those I
have to fight in any one place will be few."
• "For if he prepares to the front his rear will be weak, and if to the rear, his
front will be fragile...and when he prepares everywhere he will be weak
everywhere."
• For the same reason we gather information about our opponent, we strive
to conceal information about our own strengths and weaknesses, plans
and objectives.
Washington’s deception
based on surprise
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Friction-the force that resists our
action
• Pervades everything we do.
• Murphy's Law--expect adversity, opposition, acts of
God, breakdowns, the unforeseen.
• Our task is to function effectively within friction and
to increase and exploit the opponent's friction.
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Uncertainty
• A type of friction
• Our task is to function effectively amid uncertainty and to
increase and exploit the opponent's uncertainty.
• In a recent case we filed 5 potentially decisive motions shortly
before trial and advised the client that, "The time to settle the
case is before our 5 motions are heard and ruled on."
• For the same reason, we
often conduct mediations
while a Motion for
Summary Judgment is
pending.
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The uncertainty/time tradeoff
• Speed, action, boldness, and surprise compensate
for imperfect information.
• We should always have a bias for ACTION.
• Gen. Patton: “A good plan violently executed now is
better than a perfect plan executed next week.”
• Gen. Powell’s 60% rule to avoid analysis paralysis.
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