Info Litigation

Principle of two weaknesses and litigation

What is the “principle of two weaknesses” strategy from chess and how can I use it in litigation?

If your adversary has only one weakness, they can devote all resources to its defense, but if you create another “front of attack” – a second weakness – those defensive resources begin spreading thinly, weakly, and inefficiently. The attacker can alternate between which weakness to attack and forcing the defender to tangle themselves.

When do I use it?

No rule says a deposition must be conducted chronologically or in a way that is easiest for the deponent to understand.  Shuttling the topic of conversation back and forth forces a deponent to become defensive rapidly.  Getting them to be defensive before you ask the real knockout question you had planned is how you fight on the high ground.  Their answer will come across as “extra defensive” no matter what.

Also, you *always* want to use alternative legal theories.  Of course one of them will likely be better than the others, but if you’re busy worried about the additional burden of having to prove the allegations – then your adversary is busy spending time and energy worrying about you doing so.

In his sixth video on the topic, International Master Daniel Rensch discusses how a good boxer will attack the head and the body, pivoting between the two areas to throw the defender off balance, and how a good chess player does the same.

Litigation is the same; you hit them with one set of questions, pivot to questions on another legal theory, then pivot back chronologically to the first question to clarify.

When you have close cases with a “barely perceptible” advantage is when this skill really comes to the fore.  Either you use misdirection or you are being misdirected!

Using this technique takes advantage of the human psychological tendency to consider risks as riskier than they are.

Imagine you are plaintiff’s counsel and you are busy trying to prove up two different things:

  1. Negligent misrepresentation
  2. Fraud

You know there was a misrepresentation, but you cannot prove the oh-so-important “scienter” part.  In your mind – and from your client’s perspective – you only really care about recovery.  Whether the person made the misrepresentation intentionally or accidentally doesn’t impact your client’s ultimate disposition.  They just want their money back.

So, should you not waste your time trying to prove up fraud?  Absolutely you should try and prove it up because it’s not wasted effort at all.  Frightening consequences flow from the possibility of a factual finding of fraudulent activity that do not flow from any mere negligence.  The potential consequences – the blowback – need to be at the forefront of your adversary’s mind. You must pursue the fraud so that they know how lucky they are they got off with mere negligent misrepresentation.

“I could be convicted of fraud…. I won’t be able to ever work in xyz again…. I didn’t lie on purpose, I just messed up come on!” 

The two weaknesses are in your opponent’s psychological makeup.  Go ahead and use them both, but you only need one for checkmate.


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