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Trials and the art of bloodless war

Feb 08, 2009 Trials and the art of bloodless war

 

Is criminal defense work about proverbial war and sometimes bloodletting? Hell, yes, whether one wants it that way or not. As I have said before, t’ai chi principles are important to criminal defense, for focusing on harmonizing an imbalanced situation without applying more than a few ounces of force and without seeking to inflict heavy proverbial casualties as a goal, but not shying away from inflicting such casualties if necessary and within the bounds of law and legal ethics.

Lessons from the following heavily inform my trial battle approach: t’ai chi; Taoism (which heavily influences t’ai chi); Sun Tzu’s Art of War (t’ai chi masterpiece Cheng Tzu’s Thirteen Treatises is intentionally entitled similarly to the alternative title of Sun Tzu’s Art of War, which is Sun Tzu’s Thirteen Treatises); the Trial Lawyers College (the TLC’s primary founder Gerry Spence references Sun Tzu); and Buddhist teachings on no coming-no going/no birth-no death/no increase-no decrease (t’ai chi master Benjamin Pang Jeng Lo speaks of "not chasing [the opponent’s] attributes, or competing, or catching up, or exceeding him").

Fortunately, the warfare of criminal defense does not require baring fangs, beating chests, or raising voices. However, a criminal defense lawyer is severely weakened when s/he expects fairness from the law, opponents, lawyers of co-defendants who might be(come) snitches, judges, opposing witnesses, and jurors. Fairness from any of these corners is to be enjoyed, but to always expect it is to guarantee severe disappointment. The sooner a lawyer knows of rampant unfairness in the criminal justice system, the sooner the lawyer’s skin will be thick enough — still surrounding a caring heart, hopefully — to barely bat an eyelash when unfair and underhanded goings-on happen inside and outside the courtroom, so as to leave the matters for later or ongoing commiseration with colleagues and for efforts at reform and improvement.

Even semi-pacifists like myself can learn vital trial battle lessons from the likes of Sun Tzu’s Art of War (translated in full here), which is over two millennia old, but less than three centuries in grabbing the attention of Western military and non-military thinkers and actors.

Although Sun Tzu is discussed all over the place about business and many other areas beyond the military, I have found no book-length discussion of Sun Tzu as his teachings apply to criminal defense practice, but have found some of the below-addressed shorter discussions related to criminal defense practice. Today’s blog entry brings together some of my observations about Sun Tzu and criminal defense, and links to others’ related discussions.

In the second of the Art of War’s thirteen chapters, Sun Tzu says: "When doing battle, seek a quick victory. A protracted battle will blunt weapons and dampen ardor." Here are some of the ways this passage relates to criminal defense:

– A slew of felony defendants are detained pretrial either because they cannot afford bond, the judge has set a bond too high, or the judge has refused to find that the defense has rebutted the presumption of no bond in so many felony matters. The no-bond status erodes the defendant’s morale and funds, particularly if the defendant will lose his or her job due to the pretrial detention, and if the defendant is responsible for financially supporting those other than the defendant.

– A criminal defendant detained pretrial can expect to be billed higher fees from potential private criminal defense lawyers than if they are not detained and are free to travel to the lawyers office, rather than requiring a lawyer’s time-consuming task of driving to the jail around established visiting hours, clearing security, sometimes waiting for a free visiting booth, and waiting to meet with the client. Some federal pretrial defendants are put in jails far from the courthouse and the lawyer’s office. On the one hand, many such defendants will qualify for indigent counsel, and many of the nation’s top criminal defense lawyers are public defenders and those who include court-appointed work. However, when a pretrial defendant knows that s/he is unable to pay for a lawyer of the defendant’s choice because of being locked up, that can be demoralizing for depriving the defendant of choice.

– A common denominator among many criminal defendants is wanting "to get it over with." Just witness the reaction of many criminal defendants when the prosecutor gets a trial continuance over the defense lawyer’s strenuous objection, particularly when the trial judge refuses to reduce bond as an imperfect quid pro quo for the continuance. The suspense of waiting for the case outcome can be excruciating for many criminal defendants. Here is an example of where the client’s trust in the lawyer can get tested, and where the client will withstand folding the more that s/he continues maintaining trust in the lawyer.

– Taking a pre-emptive approach against prolonged battles on too many geographical fronts, adult entertainment business veteran Phil Harvey in 1990 fought for and obtained a preliminary injunction preventing the federal government from prosecuting him and his company in more than one federal judicial district. PHE v. U.S. Dept. of Justice, 743 F.Supp. 15 (D.D.C. 1990). 

The Art of War also talks in depth about having sufficient human, intellectual and material resources to prosecute effective warfare. However, too many state-level public defender offices are under-resourced and under financed, and many state-level public defender lawyers have caseloads too large to fulfill the Constitutional guarantee under the Sixth Amendment of effective assistance of counsel. Gerry Spence has written about this conundrum, and about the ideal situation his clients are in by his having full resources to execute an effective trial war.

A student of Sun Tzu says: "Sun Tzu’s ideal military leader is calm in the midst of chaos, being able to even appear chaotic to deceive his enemy. The ultimate skill is separating oneself from the stresses of everyday life. Thus, a strong leader’s response does not correlate and follow with the stimulus, which in effect, is quite impressive to his or her people and to the competition. With this ability, one can think clearly without influences corrupting the process in bringing about the best solution. He or she has inner peace in a world of perpetual turbulence. How many times do you find yourself so wrapped up in present worries, you can’t seem to think clearly, and that the decision was made based primarily from the tension?"

Sun Tzu values winning without needing to fight, and not expending more force than necessary to reach one’s goals: "To subjugate the enemy’s army without doing battle is the highest of excellence. Therefore, the best warfare strategy is to attack the enemy’s plans, next is to attack alliances, next is to attack the army, and the worst is to attack a walled city. Laying siege to a city is only done when other options are not available."

LINKS TO DISCUSSIONS ON SUN TZU AND LITIGATION.

– My brother criminal defense lawyer Mark Bennett talks of the importance of learning to be in the moment in order to benefit from Sun Tzu.  

– Canadian lawyer Antonin Pribetic wrote a recent law review article entitled "The ‘Trial Warrior’: Applying Sun Tzu’s The Art of War to Trial Advocacy," 45.4 Alberta L. Rev. 1017 (2008).

– This article discusses the Art of War for litigators. This link only covers the first three pages of the article, which is lengthier than that.

– This article discusses applying Sun Tzu to litigation negotiation.

– A mediation center relates Sun Tzu to litigation mediation.

Two Houston lawyers address the relationship of Sun Tzu to litigation-related public relations.

PROSECUTORS, COPS, AND MAO GET IN ON THE ACT.

 

– The Western Justice prosecution blog has several times referenced Sun Tzu’s lessons to criminal trial practice.

– A trainer of police and prosecutors draws from Sun Tzu to encourage police to being open to speaking with criminal defense counsel, without requiring the prosecutor’s presence. This article should be brought everywhere that criminal defense lawyers go.   

– A police firearms instructor draws relevant lessons from Sun Tzu.

– Military people purportedly influenced by Sun Tzu include Napoleon, the architect of Japan’s Pearl Harbor attack, Mao Zedong, a leading North Vietnamese general in strategizing against the U.S. military, and the U.S. Marines in Warfighting (1989), which was penned by a member of the Air Force.

I welcome hearing of your own experiences applying Sun Tzu to your practice of law or any other area of life. Jon Katz

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