There are several parallels between litigation and military conflict, and in the latter, there is often an advantage in surprise. But how often does surprise provide an advantage in litigation of construction disputes?

The answer, in my experience, is “very rarely”. At any rate, until a very late stage, if a case ever comes to trial and counsel needs to do some “gate closing” in cross-examination.

The problem with using surprise as a tactic is not so much with surprise itself, but rather because it tends to interfere with the process of frank engagement about the merits in case between the parties in the early stages of a dispute.

Litigation is never a zero-sum game. The aggregate position of both parties at the end of the process is almost invariably worse than their aggregate position at the beginning of the process. So why do people do it, rather than resolve their disputes amicably at the outset? Sometimes, it is simply a rutting display. More often, the key factor is that one or both parties is mistaken as to its prospects.

My advice is always to consider the possibility that it is you that is mistaken. On a simple analysis, that might be a 50-50 chance? Before you discount that possibility, bear in mind the evidence that a preponderance of men think that they are better looking than average.[1] Obviously, lots of them are wrong about that. An even more striking preponderance of women think that they are more beautiful than average[2], and lots of them are wrong about that too. Apart from this natural tendency to self-aggrandisement, there are factors in the law which tend to Continue reading →