Talking tactics part 1
In any litigation decisions have to be made which will affect the future course and possible success of the litigation. The nature of those decisions will vary according to the stage of the litigation and the particular circumstances, but there will always be tactical considerations of that sort.
The point about those considerations is that however expert they are there is always the risk that they will go wrong. A seasoned litigator is not a prophet. Litigation is in many respects a percentages game.
Let us take an illustration. You have a case where you have a supporting witness to the principal event. Broadly speaking what the witness says supports your client's version of events. However in some respects it differs. Do you call the supporting witness to give evidence? Will concessions which will perhaps be made by the witness make your client seem inaccurate or (even worse) untruthful and overshadow the essential support which the evidence gives, or will the overall effect be supportive? Will a failure to call a witness seem suspicious in itself? This is a relatively simple scenario which is encountered all the time. There are of course many more complex ones. These are the sort of decisions which litigators have to make all the time.
The problem is such decisions are not an exact science. Also of course you will never know for certain what would have happened if you had taken a different course.
Tactical considerations of course arise in other fields. A good illustration by way of analogy is football. The other week Manchester United played an away game at Chelsea. That was a very important match, given that a win for United would effectively give them the Premier league title. A draw would make it almost certain that they would win (given goal difference, one win from two games after would be enough). Defeat would mean that in the last two games United had to equal or improve upon the results of Chelsea although since Chelsea were the nearest and only serious rivals for the premiership title (and given their first leg result against Liverpool would at that stage had been very marginal favourites to go through to the Champions League Final and thus were potential finalists there against United should they in turn succeed in their semi-final) losing to Chelsea could give Chelsea a momentum and a psychological edge which would assist them both in the title run-in and any Champions League clash.
This was therefore an important match. However three days later there was a home game against Barcelona where the tie would be very tightly poised given the nil nil away draw. Victory in that match would take United to the Champions League Final. That was not only going to be a very difficult game but the opponents, effectively having nothing more to play for in the Spanish league, could be expected to have ensured that their key players were sufficiently rested for the game.
Thus this was the classic scenario, where a number of differing priorities and potential problems had to be considered and weighed up in the light of skill and experience. Having balance those factors the manager had to decide upon a course of action that he regarded as the best one in all the circumstances. This was precisely the type of consideration which constantly has to be undertaken in litigation.
I shall develop this further next week.