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 push us towards overestimating the strength of our client’s case.
And so the advantages of an open and frank engagement between the parties and their lawyers at an early stage are there for both parties. Obviously, there is an advantage for a party whose case comes out of such an engagement looking good: it will be easier for that party to obtain an advantageous settlement. But there is also an advantage for the party whose case comes out of such an engagement looking decidedly ropey. If that that is the party’s best case, then is overwhelmingly likely that it is in that party’s interest to do the best deal it can at that stage, rather than plough on with expensive litigation that it is likely to lose. Sometimes, it emerges that the case as originally formulated is not the best available case at all. A party may have advanced a claim on a contractual basis which turns out, when challenged, to be hopeless. It may be worthwhile for that party to then look much more searchingly into the question of whether it has an extra-contractual case available to it.[3]
How should the lawyers behave at such engagements? Well, for one thing, they should almost always put their cards on the table, rather than keeping them in reserve in the hope of surprising their opponent at trial. This is partly because the vast majority of disputes are settled pre-trial, and so keeping a good argument in reserve is likely to be tantamount to not using it at all. But it is also because, unless you put your arguments on the table, you lose a valuable opportunity to assess whether they are likely to prevail. You may think you have some killer point, but it is always wise to consider the possibility that that supposedly killer point may have a weakness in law that you have overlooked, or a weakness in the facts that your client has not told you about. And in any event, depending on the forum, you are likely to have to either put your “surprise” point on the pleadings sooner or later, or to lose the availability of the point.
I will deal with aggression in another post: suffice to say here that being aggressive at such occasions is almost always counter-productive.
Being openly realistic about risk is a successful strategy. There are few contested cases in construction law in which the prospects of success are better than about 80%, in terms of success at trial.[4] There are so many things that might go wrong. You might get a judge who knows nothing about construction law, and who is not prepared to learn. You may have a witness who turns out to be absolutely useless in the witness box, or to whom the judge takes an construction law or irrational but vehement dislike. There may be an intervening binding judgment in another case which changes or undermines the previous law. Your opposing defendant party may fall into insolvency, such that there is no realistic prospect of recovery of money. Acknowledging these risks will make you much more plausible to the clients on both sides. And it also enables you and your client to make more resilient settlement moves; conceding ground because of these inherent uncertainties in the litigation process is better than conceding ground because it looks as though you are starting to lose confidence in your case.
Just occasionally, I have encountered opponents who have said something along the lines of, “I have got arguments up my sleeve, but I am not going to tell you what they are”. They are about as convincing as Mystic Meg.
In short, if you plan to use surprise as a tactic, a likely outcome is that it is you who will be surprised.
[1] 78%, according to https://www.researchgate.net/publication/329327914_Almost_every_woman_thinks_she’s_hotter_than_the_average_Differences_in_self-assessments_of_physical_attractiveness_between_women_and_men.
[2] 94%; ibid.
[3] I might be biased in this, but I am regularly surprised how many construction lawyers have a very poor understanding of extracontractual recoveries, and yet think it is okay to practice without having bought my book Extra-Contractual Recoveries for Construction and Engineering Work. Perhaps I am one of 78% of legal authors who think that their book is more invaluable than it really is?
[4] In distinction, there are plenty of strong cases where one can realistically predict a much better than 80% chance of a successful outcome, taking into account the strong likelihood that the case will be successfully settled pre-trial.