Those who know me know that I am not just a personal injury lawyer that practices in Spokane, Washington, but also an amateur historian with a specific focus on World War II naval history (I know, I’m a dork). Recently, I had the great pleasure of reading Shattered Sword by Jonathan Parshall and Anthony Tully. Shattered Sword focuses on the Battle of Midway from the Japanese perspective. In their book, Parshall and Tully attempt to explain why the Japanese Imperial Navy lost the Battle of Midway. To do so, Parshall and Tully employ a framework that place military failures into three categories:
1) Failure to learn from the past;
2) Failure to anticipate what the future may bring;
3) Failure to adapt to the immediate circumstances on the battlefield.
If all three of these failures are present, then there is a catastrophic failure. The more I reflect on this framework, the more I realize that it can be applied to lawyers.
Failure to Learn from the Past. Criticism is an important analytical tool. However, many lawyers fail to take a moment to reflect on their mistakes and implement a remedy to prevent such mistakes in the future. Even a victorious lawyer should take the time to reflect on mistakes he or she made before and during a trial. I find extremely bothersome when a lawyer takes credit for their victories (I’m the best!), but then explains their defeats by pointing to some uncontrollable event (crazy juries, stupid judges, God, smurfs, and even Spokane’s weather).
Now, I am not saying that we can control every aspect of our case-we most certainly cannot. Judges can make wrong decisions; juries can become confused; and witnesses, no matter the level of preparation, can freeze. However, simply because these events happen should not blind us to our own mistakes made in the litigation. The bottom line is that every lawyer makes mistakes. We should not be afraid of making an honest assessment of our performance and implement changes for the future.
Failure to anticipate what the future may bring. Parshall and Tully explain that this failure does not involve predicting the unknown, but instead involves taking reasonable precautions against a known hazard. I see this mistake made most often when lawyers do not properly prepare their cases for trial.
For example, take a plaintiff’s attorney. A plaintiff’s attorney should know that the defendant is going to focus on eliminating or reducing two separate aspects of the plaintiff’s case: (1) defendant’s liability, or (2) plaintiff’s damages. As such, a plaintiff’s attorney should anticipate, and take reasonable precautions against, the defense attempting to eliminate or reduce liability or damages. However, all too often, a plaintiff’s lawyer is caught flat-footed when the defense files a summary judgment. Such a reaction is inexcusable.
Failure to adapt to the immediate circumstances on the battlefield. A fellow lawyer once told me the following story. During trial, he objected to a claim made by his opponent during his opening statement. The judge sustained the objection. His opponent became so flustered, he could not finish his opening statement and simply sat down.
This story illustrates an important point: Lawyers must retain a degree of flexibility. Although we can take precautions against known hazards, we cannot take precautions against the unknown. By retaining a degree of flexibility along with some quick thinking, we can adapt to the immediate circumstances presented in a case.
In Conclusion. Even if we manage to avoid all these failures above does not mean we will win at trial every time. Although the Imperial Navy displayed all three failures at the Battle of Midway, Tully and Parshall noted that the Imperial Navy may still have prevailed but for one American pilot’s split-second decision to direct his dive bombing run on the Akagi instead of the Kaga.
However, if a lawyer displays all three failures at once and in the same lawsuit, then they are almost guaranteed to fail in a catastrophic fashion. In addition, these failures are based on the lawyer’s shortcomings and not on the merits of the case. If we learn from the past, anticipate known hazards, and retain a degree of flexibility, then we can put the focus of the trial on where it should be: the merits.