Fighting fire with fire: Principles of Lawfare

Fight fire with fire

Principles of Lawfare (the Proper Way)

In two earlier posts, I discussed and applied sales and marketing principles to politics.  There are good reasons why I did this. Politics is much like trade with the marketing of, and competition between, various political brands seeking dominance.  I was preparing a third post as the fallout from Don Brash’s ban from Massey University was occurring. Going by the response to this latest decision both across the political spectrum and media and the calls emerging for serious action, including turning the Free Speech Coalition (FSC) into a permanent group, I thought it timely to veer off a little and discuss the principles of lawfare and how to do it properly.  Lawfare is, after all, the muscle behind sales and marketing applied to make sure everyone is playing fair

First up I have to say that the right of politics tends to be uncomfortable with resorting to lawfare.  This needs to change. Recent events support a call to fight fire with fire. However, if you are going to do lawfare, you need to do it properly.    I want to seize the moment while the call for action is gaining momentum to put forward some principles upon which an effective political lawfare machine might operate.

Buy In.

A group seeking to set up a political lawfare movement needs to formulate what it stands for and exactly what it proposes to do.  The Free Speech Coalition is a good example of a single issue group (at the moment) that set out clearly what it proposed to do and sought financial support.  The Free Speech Coalition obtained incredible buy in as evidenced by support across the political spectrum and in the way of financial contribution flooding in within days and well in excess of what was being sought.

My suggestion is for a group to be formed that is wider than the Free Speech Coalition.  The parameters should be the upholding of principles and laws that underpin our democracy (free speech being just one) and enforcing of civil and criminal sanctions that fall within these principles and laws. That would then cover judicial review of decisions made (e.g Auckland council and Massey venue bans), civil action against those who cause loss or damages by political action (e.g. perpetrators of damage to property, economic loss caused by venue cancellation etc) and criminal action for breach of the law.  This last one can, at last, include crimes under the Electoral Act. Criminal action would need to be taken privately if authorities decide to take no action.

A budget or fighting fund.

Once you achieve buy-in you should be able to fund the lawfare.  However, the budget or the commitment to fund by contributors must be such that legal action can be taken in all cases that warrant it.  There is no point in waving a big stick, threatening litigation if you are not prepared to use that stick and crack some heads. It would seem to me that funding should be sought on a case by case basis as they are identified as fitting within the group’s principles.

Pick Winners as a start.  

You want to set off with wins on the board.  There will be any number of “first” cases to take.  You want a good clean case with a smoking gun or as I like to put it, a clean headshot.  The current Free Speech Coalition case is a good example. A win builds confidence and sets precedent for the less clear cases.  Often the judgment in the first cases will provide useful guidance for lining up the next cases and discarding others that lack merit.

Apply a zero-tolerance policy.

In other words, be consistent and sweat even the small stuff.  Litigation is litigation. You go to court you get a judgment. A litigation strategy (a strategy for all litigation taken) is much more than that.  Litigation is incredibly expensive. However, if you apply a strategy whereby you display zero tolerance, consistently take action and you consistently follow through on that action the message gets out into the market.   You may start off having to wave the stick, crack heads and extract justice or recompense. However, if you consistently apply a zero-tolerance approach, incidents of breach will lessen and if you do have to wave the stick it is more likely you will see a back down as the target of your stick will be in no doubt as to where things are heading.

Stick and carrot.  

Provide an escape route while waving the stick.  I call this the high road low road strategy. The high road is hard.  It is the road where the big stick of litigation cracks the head. The low road is the alternative that is presented as an easy path to freedom.  Depending on the particular case it may just be a back down from an intended action. It could be an apology for a defamatory comment or some other form of resolution such as an advertisement in a newspaper.  Putting everyone up against a wall and shooting them is not always the best idea. Sometimes genuine remorse or corrective action can be sufficient recompense.
There is nothing novel in what I have presented here.  I know from my own experience that they work very well.  Many corporates apply these same principles to brand protection.  In the long run, these principles are effective both in cost and in maintaining the brand.

A better example, with a political angle, is the Israeli government’s approach to dealing with the Boycott Divest and Sanction movement.  Fund it, hammer them all and hammer them hard. Then see if they want to keep doing what they are doing.

 

by The Undertaker


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A guest post submitted to Whaleoil and edited by Whaleoil staff.

Guest Post content does not necessarily reflect the views of the site or its editor. Guest Post content is offered for discussion and for alternative points of view.

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