The Mission of the Effective Litigator is to Advance Claims and Defenses to Trial in order to Resolve Disputes as quickly and efficiently as possible. This Mission statement contains both the thing that Effective Litigators do (the what) which is Advance Claims and Defenses to Trial and the purpose for doing it (the why) which is to Resolve Disputes.
The remainder of the Mission statement, the phrase “as quickly and efficiently as possible”, is a modifier of both the what and the why. I didn’t include this modifier in my original formulation of the Mission statement for two reasons.
First, it is contrary to the method of mission-writing that I was taught in the military, which is that a mission statement must be short, powerful and stripped bare of anything that obscures or dilutes its impact. That meant that there should almost never be any adjectives or adverbs, because the nouns and verbs a leader chooses for his mission should be clear enough on their own merits. Thus, “quickly” and “efficiently” both being adverbs, they should have no place in the Mission statement of the Effective Litigator.
Second, “as quickly and efficiently as possible” is essentially an expression of a standard, and as a standard it is not a very good one. Ideally, standards are objective measures of performance or behavior and are most useful when stated in a form that is both binary and bereft of subjective determination.
The standard of “as quickly and efficiently as possible” is neither of those things. There is no objective measure of “quick” or “efficient” and who is to say what is “possible” under a set of circumstances? Ten Litigators could have ten different opinions about that. And, even if they did agree that a particular Dispute was Resolved quickly and efficiently, the odds are high that the Client wouldn’t agree at all. Because he has no frame of reference, the Litigation process will always be too long and costly for the Client, particularly since he is the one who has to pay for it.
For those two reasons, I initially left “as quickly and efficiently as possible” out of the original configuration of my Mission statement. But as I continued to develop the theory of the Effective Litigator, I began to realize that the statement was incomplete because it was possible to Advance Claims to Trial slowly and inefficiently. In fact, in my experience, it was more common than not for Resolution to take too long and cost too much—and that was in-Effective.
Which meant that the Mission did need a standard related to time and cost, otherwise it was of not much use. This led me to look for an objective standard to insert into the Mission statement, but that proved impossible because Litigation is a game of at least four players, only one of whom is under the Litigator’s direct control—himself.
The other three players, the Adversary, the Opponent and the Court, are outside of his control. And their emotions, competence level and tendency toward Complications are all factors that will prolong the Litigation and render Resolution less quick and efficient than it should be. Because the Litigator can only influence these factors, he can only achieve Resolution as quickly and efficiently as possible under the circumstances.
The Litigator exerts this influence through Friction, which is the pain and uncertainty that is generated by an Effective Litigator as he methodically Advances his Client’s Claims and Defenses toward Trial. While bad for car engines and skin, Friction is good for Disputes. It both clarifies the mind of the Adversary so that he can rationally determine whether compromise is in his best interest and incentivizes the Opponent to engage in meaningful Settlement negotiations. Finally, Friction moves the Court to Judgment, which is the only way to fully and finally end a Dispute.
Without Friction, the Adversary and the Opponent will procrastinate Resolution because that is easier than continuing Litigation. The more Effective a Litigator is, the more Friction he will generate as early as possible in the process. Friction causes heat, heat leads to discomfort and discomfort renders compromise easier than continued Litigation—which results in Resolution, as quickly and efficiently as possible.
If the Opponent is a Process Litigator, Resolution will be slower and less efficient because he will produce no Friction of his own and, left to his own devices, will drag Resolution out to the eve of Trial or later. Likewise, if the Court is prone to Complications, Resolution will be slower and less efficient because the Litigator will be forced to divert litigation energy away from creating Friction.
To be Effective then, and accomplish his Mission, the Litigator must produce as much Friction as possible by Advancing toward Trial as quickly as possible, given the drag created by his Opponent (if he is a Process Litigator) and the Court (if it is prone to Complications). Whether he has done that in a particular case is a subjective determination.