I love cycling and I especially love the Tour de France. A month long endurance race. Whilst I enjoy watching the cycling, the scenery and Gabriel Gate sharing his regional recipes, it’s the tactics and the strategy of the different teams vying for a podium finish that keeps me hooked.
You don’t win The Tour by winning every stage or even most of the stages of the race. In fact, it is possible to win The Tour without a single stage win.
You win The Tour because you start out on day 1 as part of a team with an overall plan as to how you are going to land a podium finish. Adjustments may need to be made to that overall plan along the way depending on everyone’s day to day performance and the effect of any crashes, but all these adjustments are made with an eye on the ultimate goal. Riders need to be riding strongly and without injury when they start out, careful thought needs to be given to the make up of the team and individual performances throughout the course of the race, but without an overarching strategy none of these individual decisions on their own will get a rider onto the podium.
Lance Armstrong, for all his flaws was a master at the strategy and tactics of The Tour. It’s a shame his strategic genius was marred by his gross dishonesty.
Dealing with a dispute is like the Tour de France. When you first get wind that a conflict is brewing or whether as a plaintiff before you commence proceedings or as a defendant when you are served with a defence, starting out without a clear vision of what outcome you would like, and without a strategy as to how that outcome will be best achieved, is unlikely to bring you the result you are seeking.
In my experience, taking the time to sit down at the outset and look carefully at the whole scenario considering all aspects of it, including its weaknesses and then develop an overarching strategy as to how to proceed and why, produces consistently good outcomes in finding a resolution to a dispute, whether informally or through litigation. Although, like The Tour, good strategy alone is not a guarantee of success. It is still an unfortunate fact that litigated cases are decided on their merits to a large degree, and the best evidence doesn’t always live up to its promise under the rigors of cross-examination. An overarching strategy however, does in large measure give you the greatest chance of resolving the dispute without the need for expensive litigation. It helps you to avoid stuff ups, and allows your case to be presented in its best possible light if you haven’t been able to resolve it without going to court. By identifying weaknesses early on, steps can be taken to strengthen those weaknesses where possible, work around them or, negotiate a favourable settlement before the legal costs have gotten out of hand and/or the other side becomes aware of the problem. Early planning allows you to garner the best, most favourable evidence before people’s memories have faded (or they disappear, or become strangely unco-operative), and to engage the best experts before they have been snatched up by your opposition.
One of the greatest advantages to putting an overall strategy in place early is that it guides you through all the minor scuffles inherent in any hard fought court case. A game plan equips you to pick and choose your battles. There is no need to fight every fight in the fear that you will give something significant away without realising. You don’t need to win every stage, only the ones that count. With a game plan, it’s easier to recognise the ones that count and fight hard to win those.
Like the Tour de France, resolving a dispute and any ensuing litigation are about strategy and endurance. You need to position yourself early on to maximise your chance of getting the best possible outcome in the circumstances. After nearly 30 years running cases in many different jurisdictions, I am still surprised by the number of lawyers who simply follow the procedural steps. They don’t make every effort to find a creative resolution to the dispute outside court, they fight every battle along the way to get the matter ready for hearing without giving their case any real thought until the week before the trial is due to commence. They run their cases reactively, not proactively. Whilst this may nevertheless result in some victories where a case is strong on its merits, it neither consistently finds creative resolutions to disputes before court proceedings become necessary, nor produces well prepared cases which have the best possible chance of succeeding for the lowest possible cost.
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