Most people have by now heard or read about the disastrous defense strategy USSF deployed in its effort to defend the discrimination claims brought by the US Women's National Team. In case you missed it, the defense strategy went something like this: the men are faster, stronger, better, and they have to work harder. I expected to see the pleading signed by Fred Flintsone, but it was the handiwork of Seyfarth Shaw, a major law firm. We won't know if this was the client's idea or the lawyer's idea, but either way, it was a bad idea. Here's an article with a deeper dive into how monumentally stupid, sexist and weird this was. The result: Seyfarth Shaw was fired and the USSF President stepped down. That's right. The defense position was so bad it resulted not only in replacing the lawyers, but it also got the client fired (not to mention all the horrendous press, none of which will help with the defense efforts).
What's my point? Tactics matter. Clients often think that they want the loudest, most aggressive lawyer around. That's almost always the exact wrong choice. Litigation and trials are hard. It's a skill and an art. You have to know the law, know your client and know the overall optics. It's easy to raise every argument that comes to mind, but that's not skill; that's not tactical. Just as you would not throw 11 players out on the soccer field without any tactical guidance, you should not litigate without tactics. Choose your arguments wisely. Choose your moments properly. Know what to leave on the cutting room floor and know when to cut losses. Look out for your client beyond just the "wins" or "losses" of every legal battle. This is true whether you are in-house (and it might even be more true if you are in-house) or outside counsel.
The damage done by USSF's flawed motion strategy may be irreparable. They provided the USWNT with a gift of further proof of sexism by filing a sexist pleading. It can be hard to put that toothpaste back in the tube or un-ring that bell, choose your metaphor. While the law firm responsible is no longer on the case, and while the President has been replaced, the stain from this argument will remain. It's time for the USSF to settle that lawsuit.
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