I have been trying to figure out how Ukraine counterattacks Russia. Admittedly, I am no expert in military strategy but I have spent 50 years as a litigator and law professor. Litigation is symbolic combat, and some of the same strategies work. One of them is to counterattack. The best defense is a good offense, as they say in football. You have to try to figure out how to create a big problem for the other side in order to bring them to the settlement table.
This isn’t easy. A lot of my litigation was against the U.S. government, which has enormous advantages in litigation. Not the least of them is that government lawyers work on salary, whereas most private litigants are paying hefty hourly fees for their lawyers.
But the government has a weakness that can be used to counteract its litigation cost advantage, namely, that it has lots of cases raising the same issues. Thus, the government usually cares a lot more about the precedent that might be set in an individual case than the terms of a settlement between the parties because as a matter of legal theory, settlements don’t create precedents. I used my experience as a former government official to look for an argument that would be a total disaster for the government if I won it. I would often appeal to the government attorney’s personal interest in his or her reputation: “You don’t want to go down in history as the lawyer who lost that big issue. Even if I have only a 20 percent chance of winning it, it would be disastrous for your client (and unspoken, for your own personal career) if I did.” Using this simple stratagem, I won many very favorable settlements for clients.
The lesson is when you are outgunned in one way such as litigation costs, you should shift the locus of battle to another dimension such as a possible precedent. This is an application of one of the basic principles of European military tactics, generally attributed to the 19th-century Prussian general Carl von Clausewitz, who famously wrote that a smaller force can defeat a larger one by creating local superiority and breaking through the line.
I have been wracking my brain trying to figure out how the Ukrainians could counterattack the Russians, but, as usual, Zelensky, who is one smart hombre, beat me to the punch. In a speech yesterday, Zelensky invited the Russian troops to refuse to fire on innocent citizens and surrender. He went on to assure them that they would be well-treated and they would survive rather than be killed.
Most of the U.S. media missed the point of that speech and headlined that Zelensky had predicted that Ukraine was going to win. You have to know some Russian history to appreciate how absolutely brilliant Zelensky’s appeal to the Russian troops to change sides really was. The pivotal event in modern Russian history occurred in Petrograd in March 1917 when the czar’s troops refused to fire on the people. According to Marxist mythology, this was the pivotal event of the Bolshevik Revolution that brought the communists to power. It is their equivalent of Washington crossing the Delaware and Lincoln’s Gettysburg Address combined. Every Russian schoolchild learns this story, and every single Russian soldier fighting in Ukraine will recognize the parallel.
Unless he is totally divorced from reality — and that’s a real question — this should have Putin shaking in his boots. If it works, it will not only be the end of Putin’s regime, and probably his life, but more importantly, Putin will go down in history as the bozo who destroyed the communist regime. All Putin cares about is his place in history. This is the equivalent of my telling the government attorney that you don’t want to go down in history as the lawyer that lost the big precedent against the government.
I don’t know if this ploy will work, although I certainly hope that it does. What we do know is that if even a few Russian soldiers accept Zelensky’s offer, the Ukrainians will use modern communication and social media to amplify the deserters as heroes and patriots in the hopes that their example will spread. They are already broadcasting interviews with prisoners of war describing their war crimes and warning their former comrades in arms.
Putin is a man of the past fighting a World War II-style artillery and tank battle in which he has a huge numerical advantage. Zelensky is a man of the future who is trying to use modern media to go over the heads of the despots by appealing directly to the people.
Let’s all pray that it works. If this war settles in the next few days on terms favorable to Ukraine — and the civilized world — it will be because Zelensky has found a way to threaten Putin with a possible outcome even worse from Putin’s perspective than reaching a settlement.
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