Few people in the throes of litigation want to hear this, but it’s smart to explore ways to defeat yourself. Sun Tzu in The Art of War said, “To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.” If there are weaknesses in your case, it’s safe to assume your opponent will find them eventually. Doesn’t it make sense to find and minimize them first?
For the sake of argument, let’s say you’re the defendant. Ideally, the plaintiff wants to win at summary judgment, to beat you without going to trial. There’s a complaint, and there’s your answer. You may have provided some discovery, and the plaintiff has filed an affidavit asserting various facts.
The plaintiff’s goal is to show a judge that all elements of the claim are proven by your answer, your responses to discovery, and/or your response to the plaintiff’s affidavit. What would make that goal easy for your plaintiff to achieve? Here are some areas worth exploring:
- Did your answer admit some or all of the key elements of the claim?
- If preconditions to the claim were alleged in the complaint, did you admit they were met, or deny them without being specific?
- Did your response to the plaintiff’s discovery request support some or all of the key elements of the claim?
- Did you provide any documents in response to a discovery request that support the plaintiff’s claim?
- Did you fail to file an opposing affidavit?
- If you filed an opposing affidavit, did you fail to rebut the assertions in the plaintiff’s affidavit?
…and so forth. If you were the plaintiff, surely you’d want the defendant to answer ‘Yes’ to each of these questions. And the truth is that you as a defendant will probably answer ‘Yes’ to some of them.
That’s fine, but each ‘Yes’ is a weakness. Each ‘Yes’ offers a way to defeat yourself. Follow the path from each ‘Yes’ to your opponent’s victory, and look for a way to protect yourself along that path.
This process of discovering and countering your weaknesses works just as well when you’re the plaintiff. In that scenario, you’re fending off your opponent’s affirmative defenses. Assuming your complaint can withstand a motion to dismiss, the defendant will seek to defeat you at summary judgment. What makes that easy to achieve? Here are some directions to check:
- Are the facts and law justifying your claim(s) difficult to collect and/or argue, or nonexistent?
- Did you fail to meet one or more preconditions to your claim before filing suit?
- Did your response to a discovery request admit some or all of the elements of an affirmative defense?
- Did you provide any documents in response to a discovery request that support any of the affirmative defenses?
- Is any part of your affidavit not fully based on your own personal knowledge?
You get the idea. The trick is to make sure you answer ‘No’ where you can, and then focus on minimizing the damage from each ‘Yes’. As a plaintiff, you have the advantage of mapping this out before filing your lawsuit.
This exercise should be helpful in developing your litigation strategy. Share in the comments if you’ve tried this before. What were your results? How would you adapt it for next time?