From Bill Gates at the end of the last century to John D. Rockefeller at the end of the previous century; from Rick Scott, founder of Columbia Health Care, to AT&T; from Richard Branson and British Airlines to Dan Peña and The Financial Times; from government, banking, insurance, and every other facet of world commerce: to grow geometrically and remain, litigation must be used and mastered (wisely).

I’m going to recall, as briefly as I can, the salient points of using litigation as a business tool.

Now before we start, I want to put on the record, about 50% of my 30 year litigation history has had nothing to do with making money, I mean, a lot of lawsuits have been on principle, some were to right a wrong egregious as like slanderous comments about me; and some were because an entity only needed a well-deserved and no one else would carry the flag into battle.

I, like Don Quixote, have fought against many windmills.

As you have heard me speak and write, when creating your ‘Dream Team’, you want to have the Big Five Accountants and a Big National or International Law Firm – the best representation you can’t afford!

Unlike success-oriented fees that I recommend you use when facilitating transactions, no law firm will initially litigate on this basis.

Perhaps if your case is especially strong, they will do so on a contingency basis. Unfortunately, from time to time you will use litigation as a positioning tool and your case may not be something you can take seriously.

A year or two ago, when I was stuck with a pig in a poke, I had to litigate a case that had, at best, misleading facts to support the desired result. Fortunately, our (my) apparent lust for litigation was stronger than his desire to fight a tough fight, so a reasonably good settlement was eventually reached.

Of course, during this process my good lawyers advised us, advising that our case be much stronger, etc. Even with great lawyers, it’s their job to inform you of downside risks. Again, what happens is that you are often afraid to continue with your case.

Good lawyers win regular lawsuits. Great lawyers can win lawsuits where you have little or no chance of winning.

Three of my favorite litigators over the years are Steve Susman and Cyrus Marter IV of Susman Godfrey in Houston, Dallas, Los Angeles, and Seattle and Tim Harris of Charleston Revich & Williams in Los Angeles. All three have gotten me out of some pretty big black holes.

I have dealt with them for 10 and 20 years respectively. They are worth every penny they charge!

Our judicial system works, but we grow up fearing it. It is out of our comfort zone, so we prevent ourselves from benefiting from it. Normally, the cost associated with it prevents us from using it.

In fact, I am currently involved in a litigation in which the auxiliary actors in the litigation have rights that are being seriously violated. A large group of people could exert great pressure, but they are afraid due to previous bad experiences. They might get what they deserve, but they are not pursuing your best interests.

There are lawyers who take cases for humanitarian reasons, if the case warrants it, also in business, that is, large important corporations that take advantage of the system just because of their size.

Why do you want to sue because you are the plaintiff? As the plaintiff, you choose where and when the lawsuit is filed and will likely ultimately be adjudicated.

This can be a great advantage. And second, the plaintiff is allowed two closing arguments, which means that you (your attorney) can address the judge and/or jury once and then again after the defendants’ closing argument. This can also be very important.

26 Unbreakable Rules of Litigation

#1 CHOOSE YOUR BATTLE

#2 CHOOSE THE PLACE

#3 BE THE PLAINTIFF

#4 HAVE THE BEST REPRESENTATION

#5 LISTEN TO YOUR HEART

#6 DON’T LISTEN TO YOUR SICK STOMACH WHEN YOU ARE OUT OF YOUR COMFORT ZONE

#7 DON’T LISTEN TO FAMILY, FRIENDS, ET AL

#8 LISTEN TO EXPERIENCED LITIGANTS – LIKE ME!

#9 GENERALLY SPEAKING, DON’T WORRY ABOUT THE COST (THIS IS VERY HARD!)

#10 BIG LAWSUITS ARE BETTER THAN SMALL

#11 SELECTED JURY TRIALS, IN CONTRAST TO ONLY ONE JUDGE

#12 PREPARATION (YOURS) IS EVERYTHING – KNOW THE FACTS

#13 PRACTICE DEPOSITIONS AND TRIALS

#14 IF YOU ARE THINKING OF A BETTER STRATEGY, GET A NEW LAWYER (NOT TRUE IN MY CASE)

#15 NEVER GIVE UP

#16 DON’T BE INTIMIDATED BY THE PROCESS

#17 USING MOCK TRIALS (FINAL TRIALS YOU HOLD BEFORE A HIRED JURY)

#18 DRESS SIMPLE AND CONSERVATIVELY AT COURT – NO JEWELRY EXCEPT A WEDDING RING; WHITE SHIRT, PLAIN TIE AND DARK SUIT FOR MEN AND THE EQUIVALENT FOR WOMEN; SHORT STYLED HAIR FOR MEN

#19 STAY CALM IN COURT – IT’S OK TO CRY IF IT’S REAL

#20 HAVE YOUR SPOUSE IN THE FRONT ROW EVERY DAY. CHILDREN ALSO IF POSSIBLE. OTHER FAMILY MEMBERS IN THE SECOND ROW IS OK

#21 THERE ARE NO PRESS QUOTES OTHER THAN ‘WE BELIEVE IN OUR CASE AND THAT’S WHY WE GO TO COURT’. YOUR WORDS CAN BE EASILY CHANGED.

#22 WHEN BREAKING FOR LUNCH OR A RECESS, REMEMBER TO NEVER TALK ABOUT THE CASE IN PUBLIC – YOU NEVER KNOW WHO MAY HEAR

#23 WHEN YOU FIND A WINNING LEGAL TEAM, STAY WITH THEM

#24 ALWAYS TELL THE TRUTH, NO MATTER WHAT. THE TRUTH WILL SET YOU FREE.

#25 DURING VIDEO-TAPED DEPOSITIONS AND IN COURT, LOOK AT THE CAMERA AND AT THE JURY. MAKE EYE CONTACT.

#26 WHEN TESTIFYING AT A DEPOSITION/TRIAL, IF YOU DON’T KNOW THE ANSWER, SAY YOU DON’T KNOW THE ANSWER

It is a closed world of the best litigants. Virtually every big law firm has good or super good lawyers. All great law firms do not have great litigators. You don’t always need a great lawyer, but at some point, if you grow geometrically, you will.

Like any other project management, litigation needs to be managed. Unfortunately, just like giving a speech, you become a great litigant by going through a learning curve.

I do not mean that you have to engage in wasting effort (such as making bad speeches so that after a while you make good speeches) to be in a position to win in court. Large law firms will allow you to get ahead of the learning curve.

The Quantum Leap methodology speaks endlessly about following your dreams. Life without dreams is like a bird with a broken wing: it cannot fly. I wrote this newsletter because sometimes you will need to litigate to follow your dream.

Get out there and kick some butt, and don’t let conventional wisdom stop you from achieving your dream.

Conventional wisdom says not to litigate.

Every high-performing person and great organization in the last hundred years has litigated and is litigating as I write this letter.

Don’t litigate frivolously, but don’t be afraid either.

to your quantum leap,

Daniel S. Peña, Mr.