The best defense is a good offense – is this true in litigation?

We have all heard the adage that “The best defense is a good offense”. The thought is that by being proactive rather than passive, you will get a strategic advantage over your opponent by forcing your opponent to be on the defense. The quote is attributed to Sun Tzu, the Chinese military general, writer and philosopher who in his book The Art of War wrote that “Attack is the secret of defense; defense is the planning of an attack”. No matter the source, the notion of going on the offense to push back against threats applies to many cases and has broad application to war, games, business and even life in general. Does it apply also to litigation? In my opinion the answer is YES but in litigation it has to be used in a clever and insightful way otherwise it may cause more damage.      

In a world of challenges, many people are choosing to go into a defensive shell instead of going on the offense. They do this when they cut cost and any unnecessary fees, or when they fail to invest the capital necessary to maintain or enhance their facilities. This is very often the mistake.
 
Both individuals and corporate businesses should be looking at the bigger picture. If there is a threat of litigation, it is no good waiting too long and moaning. Usually, the threat will not disappear by itself – it needs to be resolved. If you are proactive and have a plan of action, under the normal circumstances you will get a strategic advantage over your opponent, especially if there is an element of surprise on your side. Your opponent may be so taken aback and dazed by what he has seen or heard that he could be totally shocked and disorganized. Most importantly, he will not have enough time to prepare the defense strategy and he may soon start making mistakes. In law, as in football, the team that makes the fewest mistakes, wins. If you choose the right moment and if you play it right – you can win even against much stronger opponent.
 
Imagine yourself in a courtroom scenario. You have taken the Swiss franc-denominated mortgage loan from the Polish bank some ten years ago, you have paid already almost the entire amount plus interest (in Polish zlotys) but – because the exchange rates changed dramatically over the years – you still have pay a lot and it will never change in your favour. Fortunately for you, at the time of taking the loan, the bank has failed to explained to you all provisions of the loan agreement and now you can argue that you were treated unfairly and your rights were breached. The law protects your consumer rights when you buy goods or services so theoretically you can make a compliant.
 
Now, you can be passive and keep paying interests to the bank or you can be proactive and try to sue the bank before they will sue you.
 
This is a good example of how a good offense could be the best defense. Rather than waiting for them to sue you, you can file the lawsuit and seek a declaratory judgement that you have been treated unfairly and that the loan agreement actually contains abusive clauses which is not in line with consumer protections laws. As a result, the loan agreement should be declared null and void.
 
Naturally, such an action requires careful consideration and good planning. The case needs to be handled by good and experienced lawyers and you need a bit of luck as well. But if the plan is good, if the arguments are strong and if there is an element of surprise – there is a big chance that the bank will lose or at least you will be able to settle the case on your terms.
 
My theory is that being proactive and vigilant usually pays off however a good offense solution is not ideal in every single case. Sometimes, a good offense is no defense at all if the other side has better arguments. You have to be careful and try to foresee what evidence will be presented by the other side. If you file the lawsuit and seek a declaratory judgement against the bank but the bank has stronger evidence (for instance the evidence that you actually negotiated the terms of the loan agreement while exchanging emails with bank managers) – then you will probably lose the case.
 
The tribunal has the power of decision. It decides who wins. This is why any lawsuit must be well researched and the arguments from both sides should be anlaysed in detail before any action is taken. A good offense started in good moment may give you some advantage but it is not a silver bullet. For all the law and rules of evidence we learn, for all the learning we apply, the most persuasive feature of any case is if it accords with common sense. If you find the common sense position in your arguments, then what you say in court will be irresistible. An irresistible argument usually wins, whether it is on the offense or on the defense.