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Sun Tzu and the Practice of Energy and Business Law

By Claudio Rodríguez - Holland & Knight


By Claudio Rodríguez | Partner - Tue, 02/08/2022 - 09:16

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After 25 years working for conglomerates, leading Mexican law firms, global energy companies and international law firms, I have confirmed that the law is indeed a fascinating, multifaceted and evolving discipline. Working as a lawyer is a mixture of common sense, chess, negotiation, written rules, pure practice, law knowledge, experience and legal and non-legal backgrounds. But perhaps the most interesting and complex part of its execution is the necessary strategy to work as a lawyer.

I am not the first to compare legal practice with playing chess. In complex cases, the game evolves into a real war where any and all information is valuable, including war strategies such as that developed by Sun Tzu (The Art of War), the first and most famous treaty regarding how to fight a war. It is, therefore, not a coincidence that chess evolved from an ancient Indian war strategy boardgame called chaturanga and why legal practice is, indeed, a game of chess. Circle closed.

International Business Law and Energy Law, both my specialties either by decades of experience or studies in England, are no exceptions. As all and any other specific areas of law, working in connection with global international energy companies provided me with valuable experience and a deep understanding of the business issues, aside from the legal ones. Indeed, I understood that for many clients, being a fantastic lawyer with a complete domain of the law is not enough. I call it "Legal Issues, LLP, vs. Business Issues, Corp."

It is a fact that many lawyers fail when trying to solve a problem for their clients only through the lens of the law, simply because they do not understand the mindset of their clients and how the clients see and understand their own businesses. That is why I think the three unwritten rules for being a better lawyer are: (i) to spend some time working in-house (you will learn the business issues and internal mindsets), (ii) to spend part of your career working in litigation (you will learn strategy); and, (iii) understand the rationales of general marketing principles (you will learn how to connect your business and legal experience with your client’s needs and expectations).

Thus, understanding the technical information and core business of our clients is a fundamental part of our work. As an Energy lawyer, for instance, you cannot advise on how to file a force majeure claim in connection with an outage in a combined-cycle power plant and its interconnection to the grid if you do not know the difference and close relationship between Bryton and Rankin cycles and what is a catenary. It’s as simple as that.

On the other hand, the complexity of executing a legal strategy is also seasoned with other components, such as "lex mercatoria," comparative law, best practices and pure logic. If we put all the above in a blender, we will obtain an evolving and interesting product, which is that the practice of law is an ever-changing matrix, which is why it is so fascinating.

Moreover, strategy is based on experience and legal framework (legality, of course) but we can take advantage of Sun Tzu's ideas if we are curious enough to understand the connection. Some of his principles are perfect when implementing a legal strategy. When he says, "act openly but hide your real intentions, attack using the force of an ally, be patient and leave your opponent tired, leave your enemy to attack, so you will see his intentions, look for neutral ground, eliminate your enemy's source of power, build strategic alliances with others, create temporary forces with other people against a common enemy, change your defensive and passive position in an offensive and active position, create distractions, appear to receive blows and show some weakness so you can take time to reinforce your weapons," we can clearly build a better case.

Does that mean that we shall always find a solution in litigation? Of course not. But on the other side of the coin, litigation can be a fundamental part of a legal strategy. As with everything in the legal practice, any and all cases should be studied and understood on a case-by-case basis. Sometimes, reaching the litigation stage is a clear sign that a strategy has failed. In some cases, that means that we are not properly serving our clients. Many conflicts are not legal but technical and, therefore, again, it is imperative to understand the core business of our clients. The best compliment I receive is when my clients simply say, "Claudio speaks our language." Thank you!

And speaking our clients' language is both itself a strategy and part of a better strategy, not only because communication is flawless and we are more efficient (eliminating the curve of learning and unnecessary fees), but because we will also understand our counterparts' language, which is important when building a case.

If we reach that point, which is the product of experience, and use it with other components, such as those herein described, we can be better lawyers for the sole benefit of our clients.

Photo by:   Claudio Rodríguez

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