"Ever wonder why fund managers can't beat the S&P 500? 'Cause they're sheep, and sheep get slaughtered."
- Gordon Gekko, Wall Street
Lawyers, like high finance businessmen, like to view themselves as fighters. They're intellectual warrior, field marshals of genius armies. The truth is, they're not. They may be engaged in contentious disputes with a lot at stake, but it's not war. Don't be fooled.
Death is at Stake
In war, the consequence of losing is often death. The consequence of winning too inefficiently, is also death.
This really is the true difference between law and war. If you lose a trial or write a bad contract, the consequences are fairly minor. Sure, in a death penalty case, life is on the line. But, it's not your life. The stakes for a lawyer are reputation, finances, and ego. If you lose one case, you'll have another, and another. Lawyers will lose many cases over the course of their careers. You'll have a hard time finding a general who has lost two wars.
Your life is not at stake, and in any given client matter it's unlikely that even your career is on the line. As a lawyer, you will probably never fight for survival, and if you do find yourself in a make or break scenario, you won't have the freedom to charge your opponent and attack him with every ounce of your strength. You will be confined by rules of procedure and professionalism.
That really is the meat and potatoes of what distinguishes law from war, despite the fantasies learned professionals concoct for themselves. But, there are also major differences in how law and war are conducted, further deflating the analogy.
Fighting on the Flanks
In 190 BC, the armies of the Roman Republic and the Seleucid Empire squared off for a major battle in western Turkey. At the time, the state of the art formation was the phalanx, a tightly packed formation of troops that presented the enemy with an impenetrable wall of spears and shields. In war, it is wise to dodge your opponent's hardest blow, and indeed, the Roman general Scipio Africanus did just that. Rather than face the Seleucid phalanx head on, the Roman army outflanked it. The phalanx formation though powerful, is difficult to maneuver. A tight packed formation of spears and shields simply cannot turn with any speed, and from the side and rear, it is all but defenseless. The Romans ran riot over the Seleucid army, and an empire which once stretched from Syria to Afghanistan was consigned to a rather niche part of history.
This is how battles are won, not by absorbing your enemy's hardest blows, but by dodging them. In law, the exact opposite is true. Dodge your opponent's strongest arguments and try to win the case on the flanks, on the minor side issues and obscure technicalities, and you will be doomed to failure. No judge or jury will think you are clever by simply failing to address your opponent's main argument or the key piece of evidence. The flanks can't be ignored, but they are not where the battle is won or lost.
Independence of Action
In 1805, Austria, Russia, and England entered into an agreement to unite and wage war on Napoleon. Their forces would be able to attack Napoleon from all sides, and as they progressed through Europe, the individual armies would combine to form an unstoppable tide of 500,000 soldiers, the largest army in European history. Except, that army never formed.
Napoleon defeated this alliance with a force of only 210,000 men. Napoleon divided his forces into groups of 15,000-30,000 men, each with a young, talented general at the head. These generals understood Napoleon's plans, but were relatively free to move and engage the enemy as they saw fit. There was no waiting for an order from the Emperor, or calling a conference with the other generals. This freedom gave them the speed and maneuverability to quickly conquer their enemies.
In law, this fragmentation would spell disaster. Sometimes the size of a project requires tasks be split among several attorneys, and sometimes you will need to go into hermit mode, spending several days locked in your office, doing research and not talking to anyone. Most of the time though, legal work is most successful when handled by either one person, or a group of people in constant communication with each other. With out this consolidation, lawyers will quickly duplicate the work that another is doing, or leave gaps, not realizing an important piece is being attended to by no one.
That's the nature of abstract intellectual work. On the battlefield, you can see where the other divisions of your army are, and see where there are gaps that need to be reinforced. In law, there is absolutely nothing stopping two lawyers from running the same expensive Lexis search at the same time. Until all the players come together and confer, you won't know that no one has researched a certain element of your argument.
Victory Without Battle
"The best victory is when the opponent surrenders of its own accord before there are any actual hostilities."
- Sun Tzu, The Art of War
You may have heard "The point of war is not to die for your country, but to make the other guy die for his." It's clever, but it's not true. The point of war is to make the other guy not want to die for his country, and thus he quits the field of battle and the war ends. Wars are not won by killing the enemy, they are won by forcing the enemy to surrender or route.
In this way, law is very much like war. The best strategy is to present your opponent with a mountain of evidence and arguments so compelling that they will settle immediately and on very generous terms.
Lawyers crave going to trial, showboating their talents before judge and jury, and ripping apart the opponent in open court. Warriors also have this same instinct, to be tested and emerge victorious. The difference though is that generals prefer their armies to not be tested. Generals, the good ones at least, would prefer to return from war with full numbers, and that means avoiding a long, bloody, pitched battle.
This brings us back to the main difference of law and war. Generals want to avoid fighting battles because lives are at stake. Even if you win, many of your men will die. In law, fighting it out in the court room costs you only time, effort, and the client's money. Your law school's flag football team is more like war. At least on the gridiron, someone might really get injured.