THE STRATEGY OF LITIGATION
(LAWJ-4150) - 3 UNITS

This is a participatory course, intended to teach students how lawyers think strategically: how they decide the best, ethical course to achieve their clients' goals - in the face of an adversary intent on thwarting those goals. We will be studying how hard-working, ethical lawyers, like Thurgood Marshall, Clarence Darrow, and Abraham Lincoln, sifted through the arguments they could make, and decided what arguments they should make, what points they should concede, and what points they could leave unaddressed.

Our cases will be drawn largely from landmarks in the law: the classic jury nullification cases (William Penn; John Fries); the NAACP's twenty-year campaign leading to Brown v. Board of Education; Darrow's defense in Leopold and Loeb, etc. To focus on the strategies elements, we will compare these cases to classic military thought. Strategic thinking arises from the presence of an adversary, and all forms of conflict share the same strategic calculus.

The last third of the course will be a deep dive into the strategy of attrition in General William Westmoreland's famous libel suit against CBS. Westmoreland complained he'd been defamed by CBS's criticism of his conduct of the war in Vietnam; Westmoreland pursued an attrition strategy in Vietnam and failed, and he pursued the same strategy in his libel suit against CBS, and failed again for the same reasons. We will seek to understand those failures and how they might be avoided.

Grades will be based on class participation and written assignments.

Pass/Fail:
No

Prerequisites:
Civil Procedure (LAWJ-1001)