What’s Your Game Plan? (September 2016)

Material for South Carolina Family Court Hot Tips, September 2016

Per Wikipedia, “The terms tactic and strategy are often confused: tactics are the actual means used to gain an objective, while strategy is the overall campaign plan, which may involve complex operational patterns, activity, and decision-making that lead to tactical execution.

In any litigation, the confusion of tactics with strategy can prevent a client from achieving his or her goals. From goals, strategy develops; from strategy, tactics develop. If one employs tactics without first developing strategy, or if one develops a strategy without realistic tactical means to effectuate that strategy, one is unlikely to achieve one’s client’s goals–other than from random luck.

This lecture topic was inspired by a young colleague asking me for advice about a Rule 60 motion she had filed, seeking to vacate a court approved agreement. When I asked her what her plan was to achieve better results for her client if the court vacated the agreement, this attorney had no answer. This attorney knew the client’s goal–get a better result than the agreement. This attorney knew tactics–file a Rule 60 motion to vacate the agreement. What this attorney lacked was a strategy to achieve the client’s goal.

Two examples of how goals lead to strategy lead to tactics: In a divorce case a client’s goal may be to obtain alimony. The strategy an attorney may employ to achieve that goal might be to prove the client was the supported spouse, prove the other spouse is at fault in the breakup of the marriage, use this information to obtain substantial spousal support at the temporary hearing, and negotiate an agreement or try the case from a position of strength. The tactics to develop the strategy might be obtaining a private investigator to prove the opposing party’s adultery, develop evidence of both parties’ incomes and the client’s needs, and then file for a fault divorce and seek spousal support at the temporary hearing.

Where a client’s goal is to change child custody, the strategy might be to prove educational neglect by the custodial parent. The tactics to develop that strategy might be to obtain affidavits from the child’s teachers and school administrators documenting the opposing party’s failure to address the child’s educational problems and the client’s interest in remedying these problems, and then seek a temporary hearing to change custody on that basis.

At the initial conference with a client, one should start by determining the client’s goals. After doing so, one should determine the legal and factual basis that might be used to achieve these goals–the strategy. A client who seeks to reclaim custody of a child based on the claim, “I am the mother,” might have a potential claim if custody resides with a third-party. However if the child resides with the father, this client’s basis to change custody will be unavailing. The first step in any initial consult is to determine whether there is a strategy or strategies that might realistically achieve that client’s goals.

The next step is to determine the tactics that might be used to effectuate that strategy. For example, a custody modification case based on educational neglect will be much simpler if the child’s educators will provide affidavits indicating the custodial parent is indifferent to remedying a child’s serious educational problems but that the other parent has shown an active interest in remedying these problems. In that circumstance, obtaining affidavits from these witnesses, setting a temporary hearing upon filing a custody modification case, getting custody changed on a temporary basis, and attempting to negotiate a final resolution from a position of strength might be a workable strategy.

However, if these witnesses will not supply affidavits, one will likely have to file a custody modification case, obtain an order of discovery, notice and take the depositions of these educational providers, and hope that these educational providers do not mute their concerns about the custodial parent while being deposed, before one can set a temporary hearing that might realistically change custody.

While the goals and strategy aren’t different for these two scenarios, the differing tactics will likely require different initial retainers (the second scenario will require a lot more work than the first) and have different likelihoods of success (the first scenario is more likely to achieve the client’s goals than the second). In the second scenario the client might consider narrowing goals or changing the strategy to achieve these goals. However, if one doesn’t consider goals, strategy and tactics at the initial consultation, how can one quote a reasonable retainer?

One often encounters temporary hearings in which a litigant submits numerous affidavits that have no consistent theme and tell no coherent story. While it is a useful tactic to have a client gather up initial witness statements to turn into temporary hearing affidavits, obtaining these statements without first developing the themes these statements should stress–i.e., strategy–is largely wasted effort. Better to have a few affidavits that provide a compelling explanation of why the court should grant the client his or her requests, than to have numerous affidavits that merely praise the client and damn the opposing party. However, to do this, one has to develop a strategy as to what the client is attempting to communicate to the court and one has to have the client understand the strategy well enough the help implement it.

Throughout the case, one should continually be adjusting goals, strategy, and tactics. If the tactics one intended to effectuate the strategy cannot successfully be deployed (perhaps a vital witness will not cooperate or the evidence does not demonstrate what the client anticipated), one can either change tactics (develop a different way to effectuate the same strategy), change strategy (develop a different strategy to achieve the client’s goals) or change goals. If the strategy one has developed isn’t working (perhaps, despite obtaining all the affidavits one sought for the temporary hearing, the court did not change custody), one might consider changing, or augmenting, the strategy, or reducing the client’s goals. Blindly following a strategy that isn’t achieving the anticipated results or employing that strategy when it is clear that the tactics to employ that strategy are not working is bad lawyering.

An attorney who files a child support modification case based on an increase in the other parent’s income without any plan on how to prove the increased income, is engaging in strategy without tactics. An attorney who approaches a modification case by filing a motion for temporary relief with the complaint, gathering up whatever affidavits the client can obtain, and hoping for the best, is engaging in tactics without strategy.

Don’t engage in tactics without having a clear strategy. In litigating family court cases, the confusion of tactics and strategy can cause attorneys to waste client funds without furthering client goals. While tactics can be a strategy–when the strategy is to exhaust the opposing party through litigation to the point where (s)he gives up–it’s rarely a productive strategy, and likely an unethical one.

Strategy and tactics, a “game plan,” are both required to achieve the client’s goals. The first question an attorney should answer before quoting a retainer is “what’s the game plan?” Until that question is answered, one cannot even intelligently determine what retainer one might quote because one does not know what initial work the case will entail. An attorney without a “game plan” is wasting the client’s time and money and may be destroying the client’s only opportunity to achieve otherwise achievable goals.