chancellorsville 1863Some of the best books for trial lawyers are not about lawyering at all. Over the next few months I will explore some of them in this blog.

Jim Butler is arguably the most successful plaintiffs’ trial lawyer in my generation. He has won numerous eight and nine figure jury verdicts even in the most conservative Georgia counties. Success breeds success, so he is able to pick among the cases with greatest potential, and then has the skill and resources to maximize them.

At a recent Georgia Trial Lawyers luncheon, Jim said that the best book for trial lawyers is one about a Civil War battle, Chancellorsville 1863: The Souls of the Brave, by Ernest Ferguson. At his recommendation, I finally got around to reading it on a recent camping trip.

The Southern cause in the Civil War, viewed from a 21st century perspective, is blighted by its support of the morally indefensible institution of slavery. From the perspective of Southerners who grew to adulthood in a plantation economy based on slavery, steeped in the moral rationalizations for slavery espoused by preachers in their pulpits, it was different. I had ancestors on both sides. Shigley collateral ancestors from Indiana were Wesleyan Methodist abolitionists who fought and died in Union blue. Other ancestors in Georgia and Alabama fought and died in Confederate gray. Then there were Alabama unionists in the First Alabama regiment of the Union army, and at least one ancestor who joined a band of mountain renegades who stole horses from both sides.

The military history of the war, can be studied apart from the political, economic and moral forces that brought about that fratricidal slaughter that cleaves the history of our nation.

By 1863, the Union Army of the Potomac had suffered one discouraging defeat and setback after another, with repeated reshuffling of command structure and poor morale. In January, President Lincoln gave command to General “Fighting Joe” Hooker, who despite his alcoholism was an able administrator. Gen. Hooker did a good job of improving supplies, training, military intelligence and morale of the troops.

With vastly superior numbers and supplies, Gen. Hooker planned a double envelopment of Gen. Lee’s Confederate Army of Northern Virginia while sending cavalry deep in the Confederate rear to cut off communication and supply lines. That failed due to superior leadership of the Confederate forces, and Gen. Hooker’s army was pushed back in failure. But for the death of Confederate General Thomas “Stonewall” Jackson in this battle, the author suggests it could have led to a different outcome at Gettysburg that July, and thus success for the South in the war.

I won’t attempt to tell the whole story of the battle but here are a few points that trial lawyers can glean from it despite the severe limits to the analogy between warfare the courtroom.

  • Boldness. General Lee surprised Gen. Hooker by boldly violating one of the generally accepted principles of war by dividing his force in the face of a superior force, hoping that aggressive action would allow him to attack and defeat a portion of Hooker’s army before it could be fully concentrated against him. At trial, a lawyer who is able to employ tactics that the other side does not foresee can score big wins.
  • Concentration of force. While the Union army in the field was roughly double the size of the Confederate army, the Southerners were able to maneuver so as to concentrate superior force at specific points of contact, sending the Union forces reeling. This is just one of many times in history when small and poorly supplied rebel forces have been able to beat empires by bringing lethal force to bear with strategic effectiveness. In the Bible, David was able beat Goliath with a slingshot and a well-placed pebble. At trial, it may not matter if one side may have vastly greater resources, with a global corporation represented by a top law firm with platoons of support staff. An impecunious plaintiff represented by a tiny firm that is able to forcefully strike a strategic blow at the right place and time may win. 
  • Tactical agility. Instead of retreating in the face of vastly superior force, Gen. Stonewall Jackson’s troops rapidly swept across the Union front under cover of darkness and fog to stage a crushingly effective surprise attack on the Union army’s right flank. Even when their movements were seen and reported to Union headquarters, the reports were discounted because nothing that audacious seemed credible. Until Jackson was felled by “friendly fire,” his tactical agility threatened a knockout blow to the Union army. In the courtroom, victory often goes to lawyers who think fast on their feet and are agile enough to turn on a dime, effectively switch tactics, surprise and devastate the opposition.
  • Focus. Both contemporaries and historians have agreed that a big part of the explanation for the Union defeat at Chancellorsville was due to General Hooker’s turning to whiskey under pressure. He was drunk in his tent when he should have been performing at the height of his ability. No matter how gifted a general or a trial lawyer may be, loss of focus – whether due to alcohol or mere distraction – can be fatal.
  • Graciousness in victory and defeat. While the fighting was brutal and bloody carnage, when opponents were taken prisoner, or when there were brief truces to remove the wounded or bury the dead, the opposing soldiers in this war between brothers often treated each with courtesy and kindness. Many of the opposing generals had known each other at West Point and served together in the Mexican War and in Union army before they were divided by secession. Except for some recent immigrant troops in the Union army, the troops generally shared the same language, religion and general culture. So when they weren’t trying to kill each other, they could be trading tobacco between the lines or working together on burial details. Trial lawyers may seek to bloody each other in the courtroom, but then go out to dinner afterward with a spirit of camaraderie. Professionalism requires that we maintain professional collegiality when the battle is over.

While the Confederates won the battle, they lost General Stonewall Jackson. Without his bold and skillful tactical leadership later at Gettysburg and elsewhere, they ultimately lost the war. Early in the battle he was mortally injured, with an arm blow off and the other hand wounded. He was taken to the rear and his wife and infant daughter were brought to be with him before he died. A witness described his death as follows:

“Presently a smile of ineffable sweetness spread itself over his pale face and he cried quietly and with an expression as of relief: ‘Let us cross over the river and rest under the shade of the trees.’”

We trial lawyers will all come to the end of battles. May be do so in such a spirit of sweet anticipation of what lies beyond.

Some of my loyal Georgia and Alabama friends and relatives still think it would have been better if the South had won the war. But it is better that slavery was abolished even though it took another century to begin a halting progress toward social and economic equality of the races. That process is far from complete. Moreover, it is impossible to know how a Confederate victory in that war might have affected the rest of world history. If the South had won, would there have been a nation on this continent strong enough to push back the Nazis and World War II or the Soviets in the Cold War? The speculative guesses are endless. However, despite being an eighth generation Georgian on one side of the family, I tend to think my Shigley kin from Indiana, the Wesleyan Methodist abolitionists who wore uniforms of blue, were on the right side of history.

Ken Shigley is a former president of the State Bar of Georgia (2011-12), chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16) and a board certified civil trial attorney of the National Board of Trial Advocacy. The Georgia Judicial Nominating Commission included him in the “short list” for a vacancy on the Court of Appeals in 2012 and for Fulton County Superior Court in 2002.

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Photo of Ken Shigley Ken Shigley

Ken Shigley, senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy…

Ken Shigley, senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School, and completed certification courses in trial practice, negotiation and mediation at Harvard Law School.