(By Paul Brennan) (Amazon, 2018)
Over 23 hundred years ago, a dynastic militia in China wrote down their collective thoughts on the strategic management of conflict. The Art of War (aka Sun Tzu, after the Order’s paterfamilias – see main image) is recognised as a classic handbook for modern problems (whether in war, business or interpersonal quarrels). Litigation and legal negotiations are often referred to as war (or business) by other means, and can arise or be ignited from clashes of personality as well. Thus, some 23 hundred years later, experienced Queensland Lawyer Paul Brennan gives us a legal take on Sun Tzu, and just as the warlord showed wisdom in stressing the desirability of avoiding battle, so too Brennan helps the layman understand why even the most enthusiastic litigation lawyer always talks about settling out of court.
Covering a range of litigation scenarios – commercial, family, deceased estates, debt and insolvency, even neighbour disputes – also tackling government departments, banks, incorporated associations and the like, Brennan, in a highly accessible and practical way, synthesizes the modern management of legal risk, informed by terrific wry humour and a large humanity. (There are some nice bespoke illustrations as well). Unless you are Clive Palmer, who lists ‘litigation’ as one of his hobbies, or a corporation looking for a big tax deduction, this book acts as a soothing guide to how to bottle the acid and deal with legal problems in a practical, rather than bellicose, manner. By practical, we mean things like terminating a contract without it biting you on the backside (i.e., rescission rather than repudiation), dealing in good faith as the safest way to do business, neither a borrower nor lender being, and so on. Some examples will give you the flavour of this invaluable, indispensable, and entertaining book:
Sun Tzu: Compare your army with that of your superior in numbers enemy, so you know its strength and weakness. To their credit, government departments have the professionalism and training to listen quietly when you throw a tantrum. But what if slamming the phone down and telling your wife is not enough?
Sun Tzu: Prevent co-operation between the enemy’s large and small divisions and hinder the good troops from rescuing the bad. If you have seen the film Zulu, you will know what it is like to be in a Government Ombudsman’s office, risking daily being overrun by crazed complainants fresh from battle.
Sun Tzu: Exercise caution and foresight to avoid unnecessary battles. Ask a lawyer a simple question like how much will he charge for drawing up a loan document to lend $50,000 to a friend and you would expect a simple dollar figure answer. However, your lawyer is more likely to respond, “Are you crazy?”
When the King of Wu interviewed Sun Tzu to be his general, he asked if the principles of the “Art of War” could extend to teaching the King’s 180 concubines to march in formation. The King watched on as Sun Tzu lined up the concubines in two columns and put the two favourite concubines at the head of each column; Sun Tzu explained that when he gave the order to turn right they must turn right, turn left they must turn left. He asked if they understood and they indicated that they did. The drum rolled and he gave the order “Turn Right” at which all the concubines fell about laughing.
Sun Tzu: Don’t fight in your own territory. Fights with your Neighbours – You have the house, wife, two kids and the car and are living the modern dream. What new frontiers can you, the red-blooded male, conquer but those which abut your own garden?…Yet, if you feel that this is too drastic a course of action, then the answer is to leave your neighbour alone and take your frustrations out on waiters, bank clerks, taxi drivers, motorists and others of modest stature, who preferably do not know where you live. As people live closer and closer together, neighbour disputes become increasingly common. Dogs, children, fences, wives, noise etc., there is plenty to disagree about. You may find The Art of War to be particularly useful in this instance. It basically concerns neighbourhood disputes in Ancient China. It offers practical advice such as “The object of war is peace” which may be especially useful in considering reprisals against a brainless neighbour. You may also find it useful to note that, like some judges, the police can be swayed by a well-presented case, particularly when it comes to neighbour disputes.
Sun Tzu: A clever general not only wins, but excels in winning with ease. His victories bring him neither reputation for wisdom nor credit for courage. Fights with your Clubs Associations – Club membership has so much more to offer than a game of tennis, bowls or a few social drinks. Add to that intrigue, gossip, conflict, and the cut and thrust of the committee meeting which spills over to the AGM and it can be all-out war.
Sun Tzu: When active, appear inactive; when near, make your enemy believe that you are far away; when far away, make your enemy believe that you are near. As E.W. Howe said, “There are very few grave legal questions in a poor man’s estate.” But add even a little money and any family can become the stage for some stellar and demanding performances from its members. Often the indolent, gin-swilling, shopaholic daughter-in-law who must be kept away from the wonderful son’s inheritance can become in time, the saintly mother who sacrifices all for her own children and deserves every penny. The death of her husband may launch her into a new marriage and the role of hated, money-grabbing stepmother, only for her new husband to die and for her to inherit everything, leaving his children without an inheritance. But her loneliness throws her into the arms of a chancer and she becomes the fear-driven widow who is about to be taken for a ride by a man who through some quirk of law, could leave her money to his own children. [Also, Confucius say; ‘He who waits for dead man’s shoes goes barefoot’. – Ed.]
Sun Tzu: An army which is restless and distrustful invites trouble from your enemy. Management getting you down? Wait a minute, you are management. You are a band of four equals growing a company to sell it for a killing. Initially, your conservative, systematic approach mixes well with their knockabout, cavalier manner. However, as the company becomes more successful, the other three shareholders increasingly play the three musketeers as if you were one of the Cardinal’s men. Voting in the board meetings becomes three to one and not one for all. They decide to make your life a misery so that you leave without insisting on a full 25% share. They deliberately criticize or ignore everything you say, treating you like an employee and starving you of information to upset you, despite you being a director. This strategy can be very successful. Sun Tzu advised that it was better to crush your enemy’s will without fighting.