Gerard Chaliand, an international guerrilla warfare expert and friend, describes war as involving a combination of strategy, tactics and instinct. These ingredients are also necessary in legal work, especially for litigation and the resolution of disputes.
To develop a strategy or tactics it is best to find the most relevant and reliable facts. Otherwise you may rely purely on instincts.
Finding facts takes time, effort, energy and documentation. Facts are events, transactions or circumstances either seen, heard, experienced or documented. They are not opinion, suspicion, hearsay or rhetoric.
Here's an efficient way to group facts in disputes and litigation. Prepare a chronology of events. Create a table with three columns and lots of rows. In each row of the first column type the date for each event; if the date is uncertain indicate this. In the second column type a short form description of each event. In the third column, name or refer to the evidence for that event. It may be a conversation, an act, a failure to act, or a document (eg a letter, invoice, statement, or contract).
In disputes the first thing to do is to gain and remain in command over the facts. Let's now test this concept.
Watching Warlords this month on ABC Television illustrates how in World War II Churchill, Stalin, Roosevelt and Hitler regularly communicated directly or via their diplomats or other intermediaries. Each was engaged in communicating information that involved a combination of spreading facts, lies, deception, half-truths or feel good statements supported by no action. They did it between each other in letters, cables, diplomatic pacts and other written communications.
What makes Warlords interesting is its style of storytelling, structured around documentary evidence and quotes from such written communication. It resembles the legal process described above. Warlords notes that key errors by the warlords in strategy, tactics and instinctive responses arose when the facts were ignored, misinterpreted or unavailable.
The TV series producers describe it in this fashion: "World War II was not only a military conflict. It was also a series of private psychological battles waged by the four great leaders: Adolf Hitler, Joseph Stalin, Franklin Roosevelt and Winston Churchill. In these mental duels, the 'warlords' lied, schemed, charmed, flattered and cheated to win." This sounds like what often happens in litigation and dispute resolution cases.
Ideally, decide to attack or defend only after you and your advisers have confidence about what are the facts. A chronology of events keeps your side on the same page. If you don't know the facts you can't assess your position or that of others in the dispute. Usually the risks of acting on such an uncertain basis are too great.
A detailed chronology of events helps a lawyer or barrister do what each does best in applying legal knowledge. Remember, in litigation and the resolution of disputes facts are often more important than the law.