“Configuration of terrain is an aid to the army. Analyzing the enemy, taking control of victory, estimating ravines and defiles, the distant and near, is the Tao of the superior general.” Sun-tzu, The Art of War 214 (Ralph D. Sawyer trans., Westview Press 1994).
While the use of Sun-tzu’s strategy dramatizes a litigator’s role, the principles apply. Where and how a litigation takes place matters. Consequently, parties will seek the advantages of the terrains and respective configurations. This will include considerations of the procedural and evidentiary rules applied by each and their resources, speed, required disclosures, and more.
The issue of a terrain and its configuration may be all the more acute when the action is perceived to be high risk or presents a highly technical subject such as that involving a purported “nuclear incident,” which may include the question of whether an action should be adjudicated in federal or state court. Most people shudder at the thought of a lawsuit relating to a nuclear incident. Regardless of the types of claims asserted, actions involving allegations of radiation present specters of substantial damages or confrontations with complex science. Despite the initial reaction, however, allegations concerning a nuclear incident may provide parties, particularly defendants, with the option of selecting the terrain where the battle will be waged. Evaluating and seizing that terrain is the Tao of the litigator.