“Configuration of terrain is an aid to the army. Analyzing the enemy, taking control of victory, estimating ravines and defiles, the distant and near, is the Tao of the superior general.” Sun-tzu, The Art of War 214 (Ralph D. Sawyer trans., Westview Press 1994).

While the use of Sun-tzu’s strategy dramatizes a litigator’s role, the principles apply. Where and how a litigation takes place matters. Consequently, parties will seek the advantages of the terrains and respective configurations. This will include considerations of the procedural and evidentiary rules applied by each and their resources, speed, required disclosures, and more.

Defendants seeking a federal forum in actions involving radiological allegations should carefully consider whether the Price-Anderson Act confers federal jurisdiction. Under the Price-Anderson Act, allegations regarding a “nuclear incident” can change the dynamic where forum selection is concerned. In these circumstances, a defendant struggling for a different terrain should look to the act, which is legislation designed to establish a federal system of insurance and limited liability for nuclear incidents.

Evaluating and seizing the terrain where a legal battle will be waged is the Tao of the litigator.

Read more from our article, “Price-Anderson Act Removal of Litigation Involving a ‘Nuclear Incident’” in the Summer 2020 issue of the American Bar Association’s “Environmental & Energy Litigation” Committee newsletter by clicking here.