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Jon Eisenberg
The Recorder
01-17-2007

"I don't understand your client," opposing counsel once told me as I surged forward with what was plainly a losing litigation strategy. Many Americans are now expressing similar incomprehension about President Bush's plan to continue fighting the Iraq war with a surge of 20,000 additional troops.

As an appellate specialist, I have often represented large corporate clients seeking reversal of hefty money judgments. It is my standard practice, soon after my retention, to broach the subject of settlement. The outset of the appellate process is a good time for reassessing one's strengths and weaknesses in light of how the battle has been fought so far. One of the tasks of the appellate specialist is to advise the client of the likelihood of success or failure on appeal, and thus how best to proceed. This can point the way to a range of options.

A strong position on appeal counsels toward going forward with further litigation and demanding favorable settlement terms. A weak position on appeal counsels toward settling on less favorable terms, or sometimes even throwing in the towel and paying the judgment in full. Appeals are costly, and I don't like to see clients tossing good money after bad.

Occasionally, I tell the client in no uncertain terms: "You are going to lose this appeal. You should settle, for whatever it takes." Usually they listen. Sometimes they don't, instructing me to rebuff all settlement overtures. That was the scenario when my opponent said to me, "I don't understand your client."

Here's what he did not understand, and what I've learned from representing big corporations: Corporate managers sometimes fight losing battles, against all odds and contrary to counsel's advice, for reasons that have little to do with winning or losing.

It could be that the company is short on cash, and management feels it would be better to take the hit a few years down the line, when the corporation might be more favorably positioned to absorb the loss, even if substantially greater than what the case might have settled for. Or perhaps the company has decided that it is worth the price of litigation to put other potential plaintiffs on notice that if they're considering suing the company they'd better be prepared for a long fight to the bitter end. Or it could be that the manager who holds the purse strings has a yearly budget for paying claims, and that year's budget has already been exhausted.

Each of these reasons makes some sense. But there are others that don't, at least as sound corporate policy.

Some executives get caught up emotionally and fight on because they can't stand the thought of losing. Some are gamblers at heart. And occasionally there's the department head who knows he will soon be moving on to another position in the company, or perhaps retiring, and wants to delay the hit until it strikes on someone else's watch. These are all terrible reasons for continuing to fight losing battles.

Which brings me to the war in Iraq.

Like the litigant whose attorneys have warned that further litigation is a losing proposition, President Bush has been told by his own generals and the Iraq Study Group that we cannot quell the Iraqi insurgency. They say it's time to put an end to America's war in Iraq. The question is how quickly, and in what manner, to extricate ourselves from the mess. It will be painful, but the cost of continuing to fight -- in American lives and dollars, and to our nation's stature in the world -- will be even worse.

Yet our nation's chief executive now wants to escalate the war, against all reasonable advice, with a "surge" of additional troops -- throwing good money after bad, with more American soldiers killed and maimed, as the rest of the world continues to lose faith in America as a beacon of reason, compassion and hope.

Incomprehensible? Not to me. President Bush is acting like a few executives I've encountered in the corporate world. Evidently he can't handle the thought of losing. He'd rather fight on and let the next occupant of the White House suffer the stigma of defeat. He's a gambler -- not just with dollars, but with American lives.

This is why some litigants, and some politicians, continue to fight losing battles. As a litigation strategy, such behavior is just plain stupid. As a nation's policy, it is tragic.

Jon B. Eisenberg is an appellate attorney in Oakland, Calif., with the law firm of Eisenberg & Hancock.