Thursday, November 12, 2009

Maginot Lines in the Sand

The French Maginot Line, a series of impressive fortifications running from Switzerland to Belgium, was conceived in the 1920s and built in the 30s as a defense against possible German invasion. The concept was seen as an improvement over the trench warfare which typified so much of the military experience during World War I from 1914 to 1918. The fortification plan was not thrown together in a slap-dash manner; rather, it was well thought-out by some of the more experienced military minds in France. Nonetheless, with the benefit of hindsight, we all know now that the plan completely failed to deter the German Wehrmacht, which had abandoned such obsolete forms of warfare in favor of a mobile, armor-based attack strategy.

In defense of the French planners, much of the work on the Line was done before Hitler’s massive rearmament during the mid to late 1930s; however, even after it should have been obvious that reliance on the Maginot line was obsolete, the French failed to modify their strategic planning. The Wehrmacht bypassed the Maginot Line, swept through Belgium (again),* and forced France to seek terms about a month later.

The lesson in all this for tort litigators is to avoid becoming too "entrenched" in one’s own plans and calculations, regardless of how well thought-out they may have been. It’s OK — in fact, highly desirable — to come to mediation having strategized about how much you want to get (or spend) to settle your case. But do not draw your line in the sand so deeply that you fail to appreciate risks that become apparent during the mediation. You may miss an opportunity to achieve a settlement that, while not exactly measuring up to your expectations, is nonetheless reasonable.

As I pointed out a few weeks ago, nobody can predict with any precision what is going to happen after a jury starts its deliberations. See "Jury Prognostication," posted October 15, 2009. Rather than basing your side’s "bottom line" on what you believe a jury is likely to award, think of it instead as an amount for which the case ought to settle now. There is a big difference between the two approaches: the first requires a prediction about what 12 strangers are likely to do at some time hence; the second, a prediction about what the people across the table are likely to do now — perhaps based on their fear of what a jury may do at some time hence.

If your original prediction about what it will take to settle is proved wrong at the mediation, it is unwise to walk away from the negotiations without first pausing to rethink your original analysis. Nine times out of ten, if the parties are close — but not close enough — it is best for everybody to take a deep breath, compromise a little more, and get the deal done.

* The Luftwaffe simply flew over the Line.

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