Good Facts Are Not Enough: The Material Requirements Of Victory


By trade, I am a practicing attorney and a partner in a law firm.  In my fifteen year legal career, I have tried a large number of criminal cases in federal and state courts.  I have also litigated an equally large number of complex business and consumer bankruptcy matters in federal bankruptcy courts.  This background, combined with my previous career as an military officer, has taught me a few things about conflict and its management.

Conflict has a trajectory.  It begins, simmers, crescendos, and then approaches a climax.

It is one thing to read about a subject in a book.  One can read about the theories of Sun Tsu, Jomini, Clausewitz, or any number of military theorists.  And this is a productive use of time, worthy of time and effort.  One can also read about jury trials, or see movies about them, however imaginary or misleading many of them are.

And so many of them are laughably misleading.

But it is quite another matter actually to be in the hot-seat.  To handle a jury trial alone, from start to finish–from voir dire until the final verdict–is not something that can be imparted by the written word.  Writing is incapable of expressing the emotions, the stress, the exhilaration, the anger, and the eruption of intensity that comes with this experience.  There is nothing else like it.

There are law school graduates.  There are people with diplomas on their walls.  There are people who spend their legal careers safely ensconced in some corporate or government office, afraid to get their hands dirty.  There are those with opinions about everything, without having done anything.

And then there are the few who actually fight it out in the real world.  The few who are actually capable of doing what trial attorneys do.  Those who have actual clients, actual businesses, and actual victories.

In an earlier post, I discussed some aspects of conflict.

One aspect in particular deserves additional mention:  the need for material support.  Or, we could call it logistical support.  I was thinking about this today in my office.

This is what I have seen time and time again:  good facts are not enough.  If you wish to be successful in the arena of conflict, you need the tools to do the job.  In the legal world, these tools are generally twofold:  (1) the financial resources to litigate the case successfully; and (2) having a client who is supportive, responsive, and engaged in the battle.

If either of these tools is lacking, victory is in doubt.

Let us discuss the financial issue.  With money, a litigant can hire experts, can fight every motion, and can wear down the other side with discovery.  Money makes a difference.  Money sends a strong message to the opponent.  Money is an asset, just as surely as gasoline and food is an asset to a mechanized army.

Would OJ Simpson ever have been acquitted if he had been indigent, and been forced to use a public defender?


People don’t like to deal with this reality.  But it is there.  Even if you have a good set of facts, or a good case, you need to get that truth out there.  Financial resources are a great asset.  Anyone who thinks otherwise simply has never been in the playing field.

But you also need a cooperative, engaged, and supportive client.  If you client is “dropping his pack”, not answering your calls, being sullen and uninterested, then your job is measurably more difficult.  You cannot drag an unwilling mule to the fight.  Your client has to want to win.  If it is a bankruptcy litigated matter–say, a Chapter 11 reorganization–your client has to want to reorganize.

He must have the willpower, and the tenacity, to see things through to conclusion.

If you turn around, and no one is following you, then victory is in doubt.

One of the most frustrating things in my career is a situation where you see that a client has great facts, but is either unwilling or unable to carry those facts through to a successful conclusion.

But this is the way things are.  This is part of the moral dimension of conflict.  For a successful outcome to happen in a conflict, many different moving parts must come together in the right way.  And you can only control so many of those moving parts.  We cannot manage all aspects of conflict.

Good facts are the raw material to begin with.  But it’s still a long way from there to the finish line.

Read More:  On Conflict