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The Stalingrad Defense revisited

Published

2018

Fri

02

Feb

 
 
 
 
 
 
Donald Dinnie, CEO
Norton Rose Fulbright South Africa Inc.
 
 
 
 
 
 
 
 
 
 
The 2nd of February marks the 75th anniversary of the conclusion of the five month, one week and three day battle of Stalingrad.
 
Soviet casualties for the entire campaign were 1.1 million with nearly half a million dead.  The Germans and their allies lost half a million men, killed and captured.

German propaganda was quick to attempt to paint a picture of a heroic final stand with radio stations playing solemn music.  Germans who secretly listened to BBC broadcasts knew better.  The battle was a major turning point in the Second World War.
 
The Stalingrad campaign commenced in August 1942.  The Luftwaffe reduced much of the city to rubble necessitating house to house fighting and ironically assisting the Soviets in their defense.  The Soviets were initially pushed back to narrow defense zones along the west bank of the Volga River. 
 
A Soviet counterattack resulted in the Germans’ 6th army under the leadership of General Paulus being cut off and surrounded.  Hitler ordered the army to stay in Stalingrad and make no attempt to break out, eventually promoting Paulus to the rank of Field Marshal in the dying days of the battle.  Ignoring the unsubtle hint that Paulus was required to kill himself and not be captured, Paulus surrendered Stalingrad on the same day on which he was informed of his promotion to Field Marshal.  He survived a Soviet prisoner of war camp, dying in February 1957 (one day before the anniversary of his surrender). 
 
The battle is remarkable for its ferocity, brutality, intimate savagery and hand-to-hand combat.  Thirteen thousand Soviet soldiers were executed for cowardice or desertion during the campaign.  Those to be executed had been forced to strip before being shot so that their uniforms could be reused without having discouraging bullet holes in them1.  The propaganda slogan “For the defenders of Stalingrad, there’s no earth on the other side of the Volga” was passionately believed by the Soviet soldiers.
 
The Soviets attacked through cellars and sewers, successfully using men armed with sub machine guns, grenades, knives and sharpened spades2.  
 
Enemy lines were often found on different floors of the same building with fighting taking place from floor to floor in the ruined building blocks. 
 
Corpses couldn’t be removed.  Vehicles drove over them.  There were no doctors and no food and water.  Germans came to dub the new form of combat as “The War of Rats”.  Sniper teams exerted immense psychological pressure with “sniperism” becoming a cult.  “Attrition” was the watch word in the battle. 
 
The Soviets roped in everyone in the defense.  A German corporal wrote home “Everyone in Stalingrad who still possesses a head and hands, women as well as men, carries on fighting”3.
 
The Soviet defenders held on long enough for reinforcements to arrive and to mount a successful encircling counterattack.  The Soviet besieged became the besiegers. 
 
In the final days of the battle, the German soldiers were receiving a ration of 200 grams of bread per day and some horsemeat soup with no salt. 
 
Hitler was fixated on the destruction of Stalingrad (Tsaritsyn, as it was called in pre-Soviet times and which is now called Volgograd), not least because it bore the name of Stalin.  Of debatable strategic importance, Stalin insisted on the City’s defense at all costs for similar emotional reasons.   
 
In broad terms the Stalingrad Defense represents a tenacious inch by inch successful defense of attrition.  It is interesting how the term has now acquired a negative connotation in the legal context, suggesting that the defendant does not have a meritorious case but is by way of its defense only seeking to delay the inevitable.
 
The first recorded legal use of the phrase “Stalingrad Defense” appears in 1981 in a judgment in the North District of Illinois:  “The corresponding Stalingrad defense by defendants (intended to exhaust the opposition and their more limited resources, in turn leading to acceptance of a modest settlement offer).  …”
 
The judgment discusses the historical background of the Stalingrad Defense metaphor:
 
“This is a case where there was no real defense so the attorneys for the Defendant had no choice but to fight every inch of the way.  Objections, motions, and obfuscation, was the defense.  It was the only defense possible.  Truth was the enemy.  Stalingrad was saved by the Russians in World War II by literally wearing out the Germans, and this type of defence by lawyers in the last century came to be known as the Stalingrad defense.  Wear the opponents out.  Fight for every step.  However, the plaintiff’s attorneys brought every possible action under multiple state law and under federal law that could possibly apply and the battle became irreconcilable.  Thus, rancour and accusations became the byword.  This is not to indicate that the attorneys defending or prosecuting the case violated any rules of ethical conduct.  However fighting on ridiculous matters became paramount.  This in turn caused undue rancour.  Argumentum ad Hominum became the key and flavoured the entire case and continues to do so”4
 
In 2004 a Federal District Court of Maine judgment said:  “This case was bitterly contested.  Appellants mounted a Stalingrad defense, resisting Lipsett at every turn and forcing her to win her hard-earned victory from rock to rock and from tree to tree.”  
 
In 2002 the Massachusetts court in Newly Weds Foods, Inc v Westvaco Corporation, 14 MASS. L. RPTR. 728, said: “Mr Kreiger goes on to argue that the legal time involved was high because Westvaco employed a Stalingrad defence.”  This metaphor implies a defender, bound to lose, against whom all odds are hopelessly stacked, but who insists on raising every point in fighting the case to the last.
 
American courts, make an award of attorneys’ fees when determining that a Stalingrad Defense has been raised, to show their displeasure in that regard (an unusual order unlike in South Africa where costs usually follow the victor) and to counter the use of the Stalingrad Defense. 
 
In Anom v Ofori-Tenkorang, a Connecticut judgment in 2005, the Judge refers to his personal experience in witnessing the Stalingrad Defense graphically employed for 29 days by the defendant:
 
“The defendant raised the issue of invalidity of the marriage in accordance with customary law of Ghana.  The defendant did not brief this issue even after plaintiff submitted a brief on the validity of the marriage.  The defendant refused to produce copies of any Ghanaian published cases despite multiple requests by the court.  The defendant refused to acknowledge the recognized reporting service in Ghana, until the court used multiple out of state library resources to obtain that information.  The defendant did not waive the reading and signing of his pretrial deposition.  The defendant objected to the subpoena duces tecum issued by the plaintiff for the defendant’s Stamford, Connecticut personal physician.  The plaintiff sought these documents to determine if the defendant described his relationship with the plaintiff as spouse, wife and/or married in the physician’s records.  Seven separate legal objections were made to these physician records by the defendant, none supported by memorandum of law.  In order to prove defendant’s admission that the parties were married, the plaintiff was required to subpoena the following: defendant’s personal physician, hospital records for treatment of the defendant, the mortgage broker who arranged for the current first mortgage on the marital condominium, the defendant’s employment records, an officer from dependant’s employer, AIG, the defendant’s insurance applications, and a representative from All State Insurance Company.  Either the subpoena, the witness’s testimony or the exhibits offered as to his admissions were objected to by the defendant.  None of these objections was supported by a memorandum.  After the objections were overruled, the testimony and exhibits demonstrated that the defendant held out the plaintiff as his married spouse.
 
The defendant would not concede on record that certain conditions under Connecticut Statutes were not present in this case.  …  This required the trial to stop and the plaintiff called the defendant as a witness out of order to testify that in fact the defendant is not claiming the marriage void under these two statutory sections.  Immediately after this testimony the court found that the plaintiff and the defendant are not close kindred and the defendant never had a conservator appointed for him.  The trial then continued.  The defendant’s counsel claimed that color photographs of the July 24, 1999 marriage ceremony in Ghana may have been modified by a computer technique.  The court gave the defendant the opportunity to offer his own photographs of that event, proof of computer modifications of the photographs in evidence or the opportunity for the defendant to hire a photograph/computer expert.  The defendant did none of these acts and the photographs remained in evidence unchallenged as to authenticity.  The defendant’s most recent claims for relief ask that the marital home at 272 Hubbard Avenue, Stamford, Connecticut, now occupied by the plaintiff and the only home known by the two minor children, be transferred to the defendant, who now lives in South Africa.  Once that conveyance occurs, the defendant wants the plaintiff to pay the defendant $750 a month rent among other forms of relief related to the marital condominium.  The defendant’s trial tactics required the case to be tried for twenty-nine partial days with 127 exhibits.
 
On the last day of the trial the defendant orally requested to amend his two-count cross-complaint by adding a third count of mutual mistake.  The defendant claimed that his lawyer made a mistake in the quit claim deed for the marital condominium at 272 Hubbard Avenue, Stamford, Connecticut, and conveyed 100% of the title to the plaintiff.  The defendant testified that he only intended to convey a 50% interest in the condominium to the plaintiff by that quit claim deed.  Exhibit 37.  This motion was made orally.  No draft amended cross-complaint was presented to the court.  The defendant did not recite the language of the proposed amendment nor was the relief requested stated.  No brief was filed by the defendant.  The defendant failed to offer any legal authority to the court as to why such an oral request should be granted despite the court’s insistence that the defendant do so.
 
From the first day of the trial on October 8, 2003 through to the last minute of the trial, the defendant mounted a Stalingrad defense.  The plaintiff is entitled to be reimbursed for her attorney fees.5
 
The Stalingrad Defense is of course not new.  The Roman General Fabius, used delaying tactics in the Second Punic War against Hannibal, dooming the enemy to starvation and eventual defeat on Roman soil.  The Soviets applied the tactic at a micro level at Stalingrad but of course on a grander scale twice successfully, first against Napoleon in the 19th Century, and against Hitler in the 20th Century.
 
Strangely, and notwithstanding the South African media having referred to President Zuma’s approach in wearing down his opponents in litigation in which he has been involved over nearly 10 years as the Stalingrad Defense or the Stalingrad approach, that term has not been referred to in judgments or orders made against the President.
 
It is only recently that our courts have made reference to the term.
 
The Competition Appeal Court of South Africa in 2010 in the matter of Senwes Limited and the Competition Commission of South Africa, in commenting on the purpose of the Competition Act being to ensure expeditious resolution of disputes, referred to that same court’s view that interlocutory applications “… brought on what in a colloquial term is now called a Stalingrad approach to the defense, subverts this object of the Act, and therefore, these arguments must be scrutinised with extreme care”.  The Gauteng High Court in a 2015 judgment referred disparagingly to the respondent’s Stalingrad resistance to the RAF claim against it. 
 
The Gauteng Local Division of the High Court in a 2016 judgment dealt with an application to delay determination of the merits of the matter and said “[t]he issues raised now are symptomatic of a Stalingrad defence: The side issues taken on appeal simply delay the matter and build up costs for litigants against those who have deep pockets.  The risk of being financially out-litigated cannot be in the interests of justice particularly where the interests of justice are served ultimately by ensuring that the most effective and practical means is adopted to bring the recession application to the notice of thousands of affected investors.”  The court said that “[t]his is a classic case of a party performing cartwheels with no purpose other than to frustrate the merits of the case being dealt with expeditiously.”  The same court in a 2017 judgment said: “It is preposterous to suggest that a party is entitled in its papers to keep its powder dry, or to be able to adopt a Stalingrad type approach raising one issue or one set of facts at a time for determination while reserving its rights to raise others should it be unsuccessful on those disclosed.”
 
The 2nd of February this year will no doubt see significant and moving celebratory remembrances in Russia of the defense of Stalingrad and an opportunity to express appreciation and thanks for the tenacity and sacrifice of that city’s defenders and the heroic and historic role the defense played in turning the tide of the Second World War.  Paradoxically, it is also an opportunity to be mindful of the negative connotation and opprobrium which that defense when used in a legal battle attracts.
________________________________
Footnotes:
1 Page 360, The Second World War, Antony Beevor
2 Page 362, The Second World War, Antony Beevor
3 Page 367, The Second World War, Antony Beevor
4 X-IT Products PV Walter Kidde Portable Equipment, 227F.  SUP. 2d 494(E.D.) VA 2002
5 Superior Court of Connecticut 2005 Anom v Ofori-Tenkorang
 
Source: Norton Rose Fulbright South Africa Inc.
 
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