As disputes become more complex and fast-moving, rigid litigation strategies are increasingly put to the test. Espie Angelica A. de Leon shows how an agile or flexible litigation strategy shape outcomes across Asia’s courts and dispute forums.  
 

What does a litigation strategy look like?  

First of all, it is a product of comprehensive legal research, case assessment and evidence analysis. It is tailor-fit for the client, designed to achieve the specific outcomes the client and litigator want from the case. Strategic litigation is also borne out of sound litigation tactics: smart management of resources, familiarity with the opposing party, the judge and the risks, knowing when to launch.  

And it has to be agile or flexible.  

“A flexible litigation strategy is one that allows a legal team to adapt its approach based on evolving circumstances – such as new evidence, changes in the law, shifts in the opponent’s tactics or developments in the client’s business objectives,” said Justisiari P. Kusumah, managing partner at K&K Advocates in Jakarta. 

“It combines solid upfront planning with options at every stage – on pleadings, forum, remedies, evidence and settlement – so the team can pivot without losing direction,” said Amita Haylock, a partner at Mayer Brown in Singapore and Hong Kong. 

“A flexible litigation strategy evolves alongside the entire litigation process – from case preparation all the way through to trial, appeals and judgment execution. It considers a range of factors like budget limitations, varying client expectations, the remedies being pursued and the potential for alternative dispute resolution, especially when time is limited, or the available evidence isn’t as strong as hoped,” added Antonio Miguel Lu, a partner at Villaraza & Angangco Law Office in Manila.  

One example is when both parties are eager to reach a settlement. Sometimes, negotiations can stall. In case the trial proceeds and the case is adjudicated on its merits, having strong evidence is key to a favourable court decision. During the negotiations for settlement, problems may arise, such as one party may not be amenable to a lump sum payment. Yet, if the other party consents to payment in instalments, a solution may be reached.  

Zunxia Li, a partner at IP March in Beijing, agreed that agile litigation strategies and tactics can significantly facilitate the settlement of disputes. “In the case of a large-value technology development or cooperation contract, the court may, taking into account the parties’ practical difficulties, actively encourage reconciliation through measures such as negotiation, which not only protects the legitimate rights and interests of the parties but also promotes the continued cooperation and development between them,” she shared. 

An agile strategy especially comes in handy in intellectual property cases. Such cases involve high technical thresholds, diverse subjects and unclear standards for determining damages. “For instance, in technology-related patent infringement litigation, the technical complexity of the alleged infringing product may require the team to adjust its strategy dynamically, such as by requesting a judicial appraisal or the involvement of a technical investigator, to assist the court in accurately determining whether infringement exists,” Li explained. 

This is especially so in Asia, where IP and technology disputes cut across jurisdictions, are fastmoving and often overlap with competition, privacy or data protection and other public law issues. “Facts, forums and incentives can shift quickly as parallel proceedings emerge and regulators take interest,” said Justin Lai, an associate at Mayer Brown in Singapore. “A rigid plan rarely survives contact with those changes.” 

He said flexibility manages these shifts by preserving options. “It means litigants can speed up when early relief is vital or slow down when evidence needs time; that litigants can choose or challenge forums with an eye to confidentiality, precedent risk and enforceability. It also allows litigation to align with evolving business goals – brand protection, licensing leverage and market access – so the team can pivot between trial and settlement when priorities change,” Lai remarked. 

A flexible litigation strategy is especially crucial in China, where civil litigation is judge-led and evidence-driven. This is in contrast to common law systems, which have relatively fixed pretrial discovery and procedural schedules. In China, judges may direct the parties to supplement evidence, clarify facts or adjust claims during litigation. 

Apart from this, China’s judicial system has regional variations in judicial environments and trial priorities. Strategic litigation that is flexible takes advantage of these regional differences. “For example, in some economically developed regions or major cities, courts often have greater experience in handling complex disputes and tend to place stronger emphasis on protecting the legitimate rights and interests of the right holders, including awarding higher damages. In such cases, the litigation team may choose to initiate proceedings in these regions and tailor its strategy to align with the local courts’ practice and adjudicative tendencies, thereby enhancing the likelihood of a favourable outcome for the client,” Li remarked. 

How to develop an agile or flexible litigation strategy 

“Flexibility is not synonymous with improvization. It requires control and discipline,” Haylock stressed. 

According to Haylock and our other interviewees, the process of developing an agile strategy involves the following litigation tactics: 

Preparing multiple strategic pathways depending on how the case unfolds. “The litigation team should be thoroughly familiar with the procedural rules of the litigation and adjust its litigation tactics in a timely manner according to the progress of the case, changes in evidence and guidance from the judge, etc.,” said Li.  

“For example, under jurisdiction provisions, if analysis shows that a particular court would be more favourable for the case, the legal team can file a timely jurisdiction objection. In addition, during the trial process, if the defendant presents evidence indicating that the source of the infringing products is another party, the litigation team may apply to add the potential manufacturer as co-defendants, or if the defendant realizes there is little chance of a non-infringement defense, the team may turn to initiate invalidation proceedings to challenge the validity of the plaintiff’s rights,” she added. 

Raunaq Kamath, a partner at Ira Law in New Delhi, suggested using the flow chart approach to simulate different outcomes and reactions. This will allow the litigator to prepare accordingly. “The complex nature of most litigations is such that it renders a ‘one size fits all’ formulaic strategy unsuitable and impractical. Each case has a context and requires a tailor-made litigation strategy. Anticipating what may go wrong and putting multiple contingencies in place to brace for each of them is perhaps the best approach to navigate tricky litigious waters,” he said. 

Combining various means of rights protection. Litigation teams can combine administrative, judicial and other measures to achieve comprehensive rights protection.  

Li cited an example: “In trademark infringement cases, the team may first report the infringement to the relevant administrative authority. After the administrative authorities conducted the investigation and imposed the fine, the team can then file a civil lawsuit in a competent court for further damages. This combined approach helps to enhance both the efficiency and effectiveness of rights protection.” 

Assessing the relief options available across different venues. According to Lu, litigation teams must also remain flexible and proactive in doing this. “Select the one that can deliver the desired remedy in the timeliest manner. External factors, such as case docket load and vacancies within certain tribunals, play a significant role in this decision-making process,” said Lu. 

Considering venues where the adjudicator has a deeper understanding of the subject matter. Obviously, this will lead to higher chances of a successful outcome for your client. 

Flexible use of evidence-taking methods. Use different methods for evidence gathering according to the specific circumstances of the case. 

Knowing the strengths and weaknesses of your case or defence. This is where many fail, particularly those whose litigation actions were done in haste. “If and when any weaknesses are discovered and exploited by opponents,” Kusumah noted, “knowing when to pivot, when to concede or when to double down can make all the difference.” 

Focussing on what decides the case. Identify the two or three decisive issues of the case early on. Then, make a discovery, experts and witnesses work around these decisive issues. 

Framing the dispute well. “Characterize the issues to maximize available defences and remedies. Make targeted concessions on peripheral points to narrow issues and shift evidentiary burdens to your strengths,” Lai explained. For example, a contractual dispute on content regulation may be reframed as a judicial review to address due process and proportionality. 

Using the wish list classification. Kamath explained: “Litigants naturally approach courts with asks, often multiple. It is unusual for every ask to be equally important. Understanding which asks are genuinely non-negotiable and which can be tempered can pave the way to achieving the key objectives.” A common example is when a plaintiff gives up on costs and damages for quick disposal on the basis of a permanent injunction alone.  

Controlling the timetable. “Accelerate with summary applications, targeted discovery and focused experts when speed helps. Decelerate with jurisdictional challenges, joinders and sequencing when more time is needed,” Haylock explained. 

Adjusting your litigation strategy according to the opponent’s situation. Consider the other party’s business status, financial situation and litigation style. “For example, if the adversary is a small- or medium-sized enterprise with limited financial resources, the litigation team may prioritize negotiating compensation and reaching a settlement during the litigation process, rather than pursuing a prolonged litigation strategy,” said Li. 

Coordinating with regulators. IP disputes in Asia often demonstrate the interplay of IP, competition, privacy and data protection, and sector-specific regulations. Disputes involving telecommunications, online content and cryptocurrencies are examples of these. Plan your timing and messaging across these areas to avoid crossexposure and to build leverage for your brand. 

Keeping a coherent story. “Set a clear theme for why your client should win and keep it consistent across pleadings, evidence and advocacy, updating details as facts evolve,” Lai emphasized. 

Embracing modern technologies. “Use legal tech tools for faster research, document review and case management,” Kusumah advised.  

Lawyers also suggested the following: 

• Engaging experts from different legal areas – IP, regulatory, commercial – to enrich perspectives; 

• Revisiting your client’s goals regularly; and 

• Adjusting your litigation strategy accordingly. 

Haylock added that credibility is important, an advocate’s most valuable currency before courts, tribunals and regulators. “Strategic concessions, accurate time estimates, focused applications and fair use of authorities build trust, which makes it easier to secure the procedural latitude essential for real flexibility. Bringing disciplined preparation together with clear, commercial advice is how agility turns into client value in IP and technology disputes across Asia,” she said. 

Agility or flexibility is just one of several characteristics of strategic litigation. Is yours agile enough to withstand the many, sometimes surprising, twists and turns of a case?