A Theory of Legal Strategy

82 Pages Posted: 8 May 2000

See all articles by Lynn M. LoPucki

Lynn M. LoPucki

University of California, Los Angeles (UCLA) - School of Law

Walter O. Weyrauch

University of Florida, Levin College of Law


By the conventional view, case outcomes are largely the product of courts' application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This article propounds such a theory. It classifies legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control. Strategies that depend upon the persuasion of judges are explained through a conception of law in which cases and statutes are almost wholly indeterminate and strategists infuse meaning into these empty rules in the process of argumentation. That meaning derives from social norms, patterns of outcomes, local practices and understandings, informal rules of factual inference, systems imperatives, community expectations, and so-called public policies. Constraint strategies operate through case selection, record making, legal planning, or media pressure. Strategists deprive judges of control by forum shopping, by preventing cases from reaching decision, or by causing them to be decided on issues other than the merits. The theory presented explains how superior lawyering can determine outcomes, why local legal cultures exist, how resources confer advantage in litigation, and one of the means by which law evolves.

JEL Classification: K41, K42

Suggested Citation

LoPucki, Lynn M. and Weyrauch, Walter O., A Theory of Legal Strategy. Duke Law Journal, Vol. 49, No. 6, April 2000, Available at SSRN: https://ssrn.com/abstract=203491 or http://dx.doi.org/10.2139/ssrn.203491

Lynn M. LoPucki (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 794-5722 (Phone)

Walter O. Weyrauch

University of Florida, Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-392-6643 (Phone)

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