Litigation and Going to Trial are the Same as All Out War – You Must Win!
At age 66 and founder of two Texas litigation firms, I can say it like it is.
“Litigation and trial practice in Texas is the same as going to war and it has to be total and devastating. Leave nothing to chance and have extra firepower. You must be driven to win in Texas Courts. You were born to win.”
General George Patton said it better about the blood and guts of war:
So as not to suffer the same fate as Rudy Giuliani who I actually worked for in the ’80s, I do not ascribe to killing anyone. But if you hire the Moster Law Firm, our singular goal is to make the other bastard (ahh, opposing counsel) fall on his or her own litigation sword. He or she has to go down in metaphorical smoke and fire. That’s our objective.
This article is about how to treat Texas litigation as war and how to win Texas litigation and in the trial.
Abraham Lincoln almost lost the Civil War on multiple occasions because he chose the worst generals. They were afraid to fight and die. They lacked courage and other apt words best left undescribed. He finally found the winning combination in a hard-drinking driving General named U.S. Grant.
Do the same with your Texas law firm and Texas lead counsel. Look for fire in his or her eyes and I am dead serious. Your Texas Law Firm must want to win with a vengeance. Why else be in business? You are not looking for an armchair general or someone with a good bedside manner. You want a Texas litigation firebrand who will fight to win and vanquish the other side completely. They need to view a good fight in Texas court like an amazing Texas ribeye – to be enjoyed and savored. Not only should they want to win but they should get their jollies watching the other side fall into their well-laid traps. Look for fire in the eyes and move on if you don’t see it.
Go for smart – smart – and brilliant if you can find it. It exists but is rare. When I was a partner at a litigation law firm in Washington, D.C. in the ’90s, we were known as the team that could find the legal case which was the needle in the haystack. We were selected for our willingness to take on tough cases with low odds for the challenge and a whole bunch of them. The key was hard work by my associates who were sent back time after time when they did not bring me the right answer. The winning case is out there somewhere but usually obscure and invisible. It’s a fine litigation diamond and the winner takes all. You win a lawsuit and in litigation by being strong and bold, but smart is the key characteristic of success.
Be bold and tell it like it is. No bull stuff. Fight like you are at the Texas Alamo! The jury is your peers and works hard as you do. Most never had the opportunity and good fortune to go to law school. They are just as smart as you even if they don’t have a college degree. They can sniff out the arrogance in a heartbeat. You tell them at the top of the first inning about why you are going to win and what is terribly wrong with your opponent. You damn well show them respect. You lay it on the line and let them know that everything you and your client have to give will be put out today right in front of them. Texas lawyers are known for the bull stuff and that’s what most folks expect. You are not serving it up today.
Winning a Texas lawsuit is a chess match and you have to have every move planned in advance to the nth degree. I tell my associates to chart out each move as if I am writing a computer program or step-by-step maneuver to get checkmate. We make this argument and they will respond with A or B. If they go with B, we have response B-1. If they go with A, we have A-1. If they have neither, we hit them with a full-frontal attack which is Plan W (win now). All of our Texas lawyers have a strategy schematic and we follow it. With full-on planning, we can be multiple steps ahead of an adversary and hit them with tactics they have no idea they are dealing with. That’s how you really win in Texas litigation, trial, and war. Texans like to win and that’s what drives the Texas Litigation Lawyers at the Moster Law Firm and our offices throughout the state and the major urban markets of Austin, Dallas, and Houston.
Making your adversary and particularly the Texas judge or Texas jury laugh is the equivalent of an air raid. You can win right there and then. I was trained in this technique by one of the best and most famous litigators in Washington, the late and great Nelson Deckelbaum who hired me as a green associate in 1990. He was my mentor and tough. He lost his vocal cords to lung cancer and had a device in his throat which opened and shut like Darth Vader of Star Wars Fame. It actually made a snapping creaking sound. His voice was harsh and raspy. You didn’t want to come back from court in D.C. and tell Nelson you lost. Anyway, Nelson had a way of being outrageously funny and had some hysterical way of exposing the folly of the best adversary with humor. It worked every time. I try to land one of those punches (or have my staff do it every trial!).
Have a Plan B, C, and maybe D. Sometimes, things just don’t go your way. The Judge is having a bad day or a juror has it out for you. If your offense or defense is not working then jettison the plan and go with a bold Plan B with new arguments, witnesses, and maybe even a star new witness or untried associate waiting in the wings. Not unlike a winning final play in Basketball’s March Madness. And if that doesn’t work, then switch to B or C.
Know that you must win. Of course, that is not always possible, but your goal and intent must be to win. When I am making an argument before a Texas court or opposing counsel, I am absolutely convinced that it is the winning argument. My body language, demeanor, and even my enthusiasm embolden the strength of my case. Thoughts often manifest into things and definitely a victory.
Now, even George Patton did not win every battle but he gave it everything he had. He was loyal to his clients (the country) and his men who fought as hard as he did. That said, he won most of the time and if you were going to war, you wanted old Blood and Guts to be on your side.
Please think of the Moster Law Firm as having that same Texas conviction and Texas fighting spirit to win in Court. There is never a certainty that we will win every case, but you will witness an all-out effort akin to a major war. We are driven to win in Texas Courts and litigation and trials are war. Forget that at our peril. You can lose it all.
We will fight like no other.