For the most part, it is not taught in law school, at least not as a subject in and of itself. Yet it is part of the basic curriculum for all modern military officers.

Money tends to dominate civil litigation strategy. The party with the most money often takes on an attrition strategy—the kind where you see motions challenging everything from the service of the summons to pages of boilerplate objections in form interrogatory responses. Ultimately, as in warfare, attrition can be defeated by maneuver, especially if at the end of the day you have dominant facts on your side. So, giving battle early on favors the moneyed party, giving battle later favors the factually superior party (not at all necessarily different).

As most of us implicitly know, this situation is altered a lot by attorneys’ fees cases, where the risk of joining battle can be almost entirely borne by one side and even a blitzkrieg of attrition litigation at the beginning can backfire.

There are books out there such as Lawyer’s Poker—a bit more fashionable, but the analogy doesn’t really hold. Poker is almost entirely tactical, even if you can learn a lot about psychological tactics. I’ve also seen Sun Tzu on more than one attorney’s bookshelf. There are some important maxims in there, but it is more difficult to apply by analogy to litigation than manuals on set piece battles involving field armies and Sun Tzu is not an analytical work.

Here’s a list of books on strategy:

• The Strategikon by Emperor Maurikios of Byzantium
• The Prince by Niccolo Machiavelli
• On War by Carl Von Klausewitz
• The Art of War (Not Sun Tzu) by Jomini
• Strategy: The Logic of War and Peace by Edward Luttwak
• The U.S. Army Leadership Field Manual
• for the example nonpareil of relational maneuver, read about the Emperor Herakleios who took his field army deep into enemy territory leaving the entire empire unguarded, Constantinople besieged by Avars on one side and the Persians on the other. Ultimately his fast field army utterly destroyed the Sassanid Persian Empire at the Battle of Nineveh, which had just conquered the Levant, Palestine, and Egypt. (As an aside, the destruction of Sassanid Persia and the ruin of war in Byzantium allowed one of the major turning points in history, one very relevant to this day: the Arab conquests.) Relational maneuver is something to think about for those underdogs out there.

There is a book I have not read called Litigation is War that purports to apply Clausewitz to litigation—but what if that’s not you? Sample a variety of primary sources.

Also, as far as games go, chess is infinitely superior to poker because it combines strategy, operations, tactics, and, despite what people think it is hugely psychological (even through a computer).

The kernel of wisdom in all of these pieces is that you must know yourself. Not your boss or your client or your firm—you have to know what your own strengths and weaknesses are first. As someone once put it, you go to war with the army you’ve got (not the one you wish you had).

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Under federal law, prospective employers must get written permission from applicants to run a credit check on them. But consumer advocates say most job applicants do not feel they are in a position to say no.

Most of the bills being proposed this year resemble laws in Hawaii and Washington that prevent employers from using credit reports when hiring for most positions. The laws contain exceptions in cases where such information could be relevant to the job — for example, if the person is applying to work in a bank or an accounts-payable office.

I understand employer’s interest in doing this, but at the end of the day it may lead to incentivize bankruptcy, which has anti-discrimination provisions built in. As the article points out, California had a similar bill that was recently vetoed. In an up economy, there’s probably a stronger correlation between credit and HR concerns. In this economy?

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This week the Equal Employment Opportunity Commission filed suit in Oklahoma federal court on behalf of Samantha Elauf, 17, whose hijab became an issue during a June 2008 interview for a position at Abercrombie Kids at the Woodland Hills Mall in Tulsa, Okla. In its lawsuit, the EEOC is citing violation of Title II of the Civil Rights Act. The complaint alleges the interviewer said that any “headgear” was prohibited by the “Look Policy,” and the company refused to make an exception for Elauf to wear her hijab for religious reasons.

A&F goes on to what you might call a “general denial” in the article. To people in HR and related fields this seems like such an obvious minefield—but one wonders: in the service economy especially, just how knowledgeable are the people in situations like this? In California in firms of a certain size, sexual harassment training is required of managerial employees. Much of that would be necessary if employees read and understood their employee handbook.

Does your employee handbook read like stereo instructions written in legalese?

I can get your manual compliant in plain English for a flat fee.

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Your personal attorney.

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jonerik@jonerikstorm.com

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Not just a new practice. A new kind of practice: I worry about my client’s business—not about running my own. My lean and efficient technology-based practice allows me to offer personal attention and revolutionary pricing.

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The 2009 legislative sessions in both Sacramento and Washington, D.C. have yielded significant developments for labor and employment law.

Both? I would say, on the contrary, the 2009 legislative session in Sacramento was probably the least eventful of the decade in developments “for” labor and employment law.

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So, I thought I’d point to this post from Robin Weideman on Dowell v. Pacesetter, Inc., a case which is more or less unremarkable, except that it is part of a continuing trend from the Court of Appeals: quit trying to make exceptions to B&P 16600.

We saw this earlier this year in TRG v. Galante and FLIR Systems v. Parrish. I noticed that I was hoping in my FLIR post to see the TRG ruling in July, but it came down in August.

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I find this interesting because what I have termed in the past “arbitroskepticism” seems to be a contrarian point of view, but it is increasingly gaining traction among lawyers who blog. The simple logic was always this: if the forum really was so advantageous for employers (or any one side, whoever) how long could it really be before the courts and/or legislature took notice. Added to that was, where’s the data?

And of course, the Courts took notice long ago.

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Firefighter Disparate Impact Suit Filed against New Haven

So, the upshot of the politicized Ricci decision is that there can be more racial demagoguing completely out of the context of Title VII, and that’s fun for cable news. But this puts employers in the position of not being able to remedy a mistake in EEO compliance without being liable to someone, one way or another. Good thing the U.S. Chamber of Commerce is spending its membership’s dollars arguing that the earth is flat instead of lobbying on this nuts and bolts kind of thing that will affect everyone subject to Title VII.

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The thing is, are you willing to be the first lawyer that goes really lean on your briefs? Are you a partner?

Until there is a massive state-wide trial-court-level implementation of the demands in this decision, we don’t dare risk it. Do we?

[Doc file] Nazir v. United Airlines

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Please remember that Rosh HaShanah begins on Friday night and that Yom Kippur is Monday, September 28. Please also remember that you don’t get to set the level of observance for your employees, so just because you see them eating a bacon cheeseburger while carrying fists of cash around on Saturday doesn’t mean that they can’t observe these days. (You want Christmas off, right? When was the last time you were in church?)

As I said, levels of observance vary. Just in case, I should also mention that Friday October 9 is a day that traditional Jews would not do any work for sukkot, or the Feast of Tabernacles.

L’shanah tovah.

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AB 527 is awaiting action by the governor.

The rest are dead for this year, and the Governor is saying he’s going to veto everything anyway. My guess is that we won’t need to write any “new law” updates come 2010 other than the ongoing look at the courts.

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No movement in the last little while on any bills that I’m tracking for changes to California employment law. Most of them are alive in name only.

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