While I am now proudly a Texas trial lawyer, I spent the first 18 years of my adult life in the Army. After four years at West Point, I served as an armor officer in Germany and Iraq before attending law school at the University of Texas through the Army’s legal education program. I then served as a military lawyer in the Army JAG Corps for six years stationed in Washington state, Texas and Washington, D.C., before joining AZA.
Although I left the Army in 2016, I still view many things through the lens of my military training and experiences. My work as a trial lawyer is no exception. On this Veterans Day weekend, I write to share a few of the military teachings that have stuck with me and how I conceptualize them now as a member of the profession of law rather than the profession of arms.
“The airplanes don’t fly, the tanks don’t run, the ships don’t sail, the missiles don’t fire unless the sons and daughters of America make them do it.” – Gen. Norman Schwarzkopf
Trial work is a team effort. In commercial litigation, a trial usually involves not only lawyers, but also paralegals, legal assistants, client representatives, jury consultants, courtroom technology support, print teams and others. Everyone has a role, and every role is critical to the success of the mission.
“The more you sweat in peace, the less you bleed in war.” – Gen. Norman Schwarzkopf
Trials are won and lost through preparation. Every phase of a case’s pretrial lifecycle matters, from case investigation, to written discovery, to fact and expert witness depositions, to pretrial motions, to pretrial preparation. Every day provides another opportunity to become better prepared than your opponent, to explore and exploit alternative theories and angles, and to better position yourself to win.
“I have always found that plans are useless, but planning is indispensable.” – Gen. Dwight Eisenhower
Prepare for the expected but be ready for the unexpected. This is not to say that you should not have a thorough idea of what your opponent intends to do at trial. Particularly in civil litigation, where both sides are afforded broad discovery, the more you “sweat in peace,” the better your read will be on your opponent’s trial strategy. But you should be prepared to deviate from your trial plan when you inevitably get an opening you did not expect to get. These are often the moments that make the most impact throughout the course of a trial.
“Do not repeat the tactics that have gained you one victory, but let your methods be regulated by the infinite variety of circumstances.” – Sun Tzu
Be creative and adaptable. Rigidity and predictability lead to defeat. Every case is different — the facts, witnesses, personalities, nuances, storylines, lawyers, judges and jurors are all different. Avoid the cookie-cutter approach. See each case as unique, understand its individual strengths and weaknesses and figure out how to best develop and present it.
“Perpetual optimism is a force multiplier.” – Gen. Colin Powell
Trial work is demanding, and there will be things outside of your control. The facts of the case, the venue, the judge and, of course, your opponent all have a say in the outcome. A hearing might not go your way, a motion might not turn out the way you had hoped, or you might lose a trial. Yet each day is full of new opportunities, and staying positive will not only help you in identifying them, but it will create the environment for your team to do the same.
“A good plan, well executed now, is better than a perfect plan next week.” – Gen. George S. Patton
Trial work is what those in the military would call “kinetic operations.” There is someone on the other side who, shall we say, does not necessarily have your best interest at heart. It is easy to fall into the trap of wanting more and more information before making a decision. Realize that you will rarely have perfect information and you will never have infinite time. Avoid paralysis by analysis and meet your deadlines. After all, the most persuasive motion will do nothing for you or your client if you fail to get it filed on time.
“Hard pressed on my right. My center is yielding. Impossible to maneuver. Situation excellent. I am attacking.” – Gen. Ferdinand Foch
The best defense is a good offense. When possible, counterclaim. If you have no viable counterclaims, find other ways to go on the offensive: Be tenacious about getting the written discovery and depositions you need, make clear the bias of the other side’s witnesses, eviscerate the other side’s experts at deposition and file compelling challenges against them, knock out some or all of the other side’s claims through dispositive motions, limit the other side’s evidence through motions in limine. The reality is there are many avenues for offensive action in litigation. Look for them and exploit them.
“In war, there is no substitute for victory.” – Gen. Douglas MacArthur
Trial work is a zero-sum game. You either win or you lose. The stakes are high. Your clients are counting on you and trusting you with their cases. It is a much better feeling to emerge victorious, so do the work to get there.
It is not unusual as a trial lawyer to hear military analogies. Going to trial is “going to battle,” a conference room used for trial preparation is a “war room,” trial lawyers are the “gladiators” of the legal profession and so on. Hyperbole aside, the reality is that trial work, like combat, is demanding — physically, mentally and emotionally. It is a team effort, and, at least for me, many of the principles of military strategy and tactics provide helpful insights applicable to litigation.
Rey Flores is a partner with Ahmad, Zavitsanos & Mensing, a commercial litigation firm in Houston. Before joining AZA, he spent 14 years on active duty with the Army. His military assignments included a 14-month combat deployment to Iraq as a tank and scout platoon leader, service as an aide-de-camp and work as a military prosecutor and defense attorney.