The Art of War

In this episode of the Trial Lawyer Nation podcast, Michael sits down with Cowen Rodriguez Peacock partner and attorney, Sonia Rodriguez, to discuss Sonia’s rediscovered inspiration and lessons from Sun Tzu’s “The Art of War,” and the strategies and tactics trial lawyers can utilize from it while still dealing with a pandemic.

Michael opens the episode by telling Sonia about his feelings of frustration about his upcoming case (which is less than a week away at the time of recording) being canceled due to Covid concerns. Sonia responds to this by saying this trend of “getting the rug pulled out from under you,” seems to be the “new normal” for trial lawyers during the pandemic.

The two then begin to discuss how this impacts your case outside of the courtroom, specifically having to invest time and money into a case multiple times due to cancellations, the need to find flexible experts, and the pandemic’s “giant wrench” in your damage evaluations.

“We all know that, even in non-pandemic times, the certainty of a trial date was never really that certain. But now, the prospect of having to prepare multiple times for the trial setting is going to multiply the cost.” – Sonia Rodriguez

The conversation then shifts to what trial lawyers can do in times like these to maximize the value of their cases. Sonia begins by discussing her re-reading of Sun Tzu’s “The Art of War” and its impact on her successes in 2021.

“I’ve been practicing law for almost 25 years, and I’ve never made more money in a one-year period than I have during this pandemic,” Sonia says leading into her first citation from the book (with a notable twist for trial lawyers); “Supreme excellence consists in breaking the enemy’s resistance without [a trial].” This, she notes, is similar to the modern-day strategy, “If you want peace, prepare for war.”

Sonia then delves deeper into this concept by discussing how she prepares for war, or in this case trial, by hiring and preparing our experts, paying for exhibits, and (probably most important) laying plans and evaluating her cases strengths and weaknesses.

“If you know the enemy and know yourself, you need not fear the result of a hundred battles.”– Sun Tzu, “The Art of War”

Building on the subject of the importance of evaluating your case, Sonia presents one of her touchstones for case valuation: Remember torts 101, negligence has two parts. She presents that it’s easy to fall into the rut of evaluating your case based on your client’s damage model. However, if you look at your case carefully, based on liability factors you believe, and go to battle fairly evaluating both components, you will add value. Michael agrees with this, adding that if the defense did something really bad, you’re more likely to get a bigger result.

The two continue this conversation with Sonia explaining how mediators only want to talk about low property damage and pre-existing conditions; subjects to which she responds, “I spit on that!” Instead, she wants to talk about this trucking company, how they have no training protocols, how they’ve had the same types of crashes for the last 3 years, and so on; ultimately aiming to change the framework of the conversation to focus on liability.

“No one really knows what a case is worth. There is no magic formula … . If we, in our heart of hearts, believe it’s worth more, we can get more.”– Michael Cowen

Sonia then shifts the conversation to “attacking by fire,” or, in other words, always coming from a position of strength, even if you have weaknesses in a case. Regarding the weaknesses of the defense, however, Michael adds, “you always want conflict in the other room.” We want to add pressure to the other side to the point that they want out. Adding a final point to the subject of “attacking by fire,” Sonia hones in on her “fun” way to strategize; namely finding the pressure point of the defense and exploiting that weakness.

Moving on to discussing and evaluating the actions of the defense, Sonia cites Chapter 9 of “The Art of War,” entitled “Assessing Strategy Based on the Actions of Your Opponent.” Here, Michael and Sonia discuss how noticing aggression, “frenetic” activity, or threatening motions from the defense are clear signs of fear and, more importantly, weakness. “Especially when you respond with calm,” Michael says, “There’s nothing like that calm, quiet confidence.”

On that note of quiet confidence and taking power from the defense, Michael begins to take the conversation in a different route, breaking down his feelings about the results of cases and how that relates to his self-worth as a trial lawyer.

“It’s not that I don’t care about the result, it’s that my self-worth is detached from the result.”– Michael Cowen

This prompts the closing topic of conversation for the episode, mental health in the practice of law. Michael and Sonia discuss the trials and tribulations of their profession including starting and ending trials, letting go of trials (win or lose), the discipline required to maintain a healthy lifestyle, and being compassionate to yourself. “I think perfectionism is something a lot of lawyers struggle with,” Sonia says, “The struggle holds us back.” The two end the episode by sharing their own strategies for coping with the struggles of practicing law and close with a positive note of constantly seeking to be better in their cases, mental health, business, and practice.

This episode also discusses finding the weaknesses in your case and how to overcome them, the importance of obtaining key information during the initial client meeting, and trusting your intuition.