Outside of my work as a litigator I train in Brazilian Jiu-Jitsu.
I am a beginning white belt in jiu-jitsu, while I am entering my 17th year of practice as a lawyer. But the parallels were immediately obvious to me when I started martial arts training.
At its most fundamental, jiu-jitsu is about positioning and leverage. How can you improve your position and increase your leverage over your opponent? How do you survive the attack from a bigger or stronger opponent, stay comfortable in the middle of the fight, and wait for your opportunity to improve your position and submit your opponent.
This principle informs my litigation strategy.
Recently I represented a partner in a business. The partnership had soured and my client was accused of theft of hundreds of thousands of dollars’ worth of products and cash belonging to the partnership. Like many small businesses, the records were less than impeccable.
My client, while absolutely innocent, was very nervous. She was such an honest person that the mere accusation of theft made her feel guilty. And, in feeling guilty, she looked guilty. On the other side we faced a professional litigant of sorts who had made a second career out of filing dozens of lawsuits. She had also always gotten her way in the relationship.
Our opponents’ strength lay in the disparity between the two key witnesses in what amounted to a she said/she said case. My client, while innocent, appeared nervous and guilty. In contrast, our opponent had plenty of experience on the witness stand.
The business lacked good records and the Plaintiff and her lawyer were resistant to readily and fully providing information. So, we built a record through discovery requests and written correspondence.
This resistance became the theme of our case. We set the traps, improved our position and waited for our opponent to give us our opportunity.
At the beginning of trial, we pushed a motion to exclude key evidence of Plaintiff’s claimed damages because of their failure to timely disclose information.
After a half-day evidentiary hearing the Court was poised to strike Plaintiff’s evidence because the Plaintiff and her attorney had repeatedly resisted legitimate discovery requests.
As the trial began, Plaintiff’s counsel realized the damages evidence would likely be struck by the Court. We settled at the end of the first day of trial. Plaintiff took nothing and agreed as a condition of the dismissal to put in writing that it had been a misunderstanding that had led her to file the lawsuit.
We had survived the stronger adversary’s attack, improved our position, and were ready for the opportunity we were given.
My client never took the stand. And, in the end, we submitted our opponent.