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“Warfare is the way of deception”- Sun Tzu

Oct 07, 2011 “Warfare is the way of deception”- Sun Tzu

Criminal defense is battle — and sometimes war — pure and simple. I have no business taking on a client unless I will take off the boxing gloves and focus on victory at every turn, within the bounds of professional conduct rules, without concern about decimating the other side if that is what it takes to obtain victory. I love doing criminal defense because there is little that makes me uncomfortable about the work (other than snitching, which I generally am able to avoid getting involved with, by telling potential clients at the front end that snitch help is not my bag), so I have virtually no mental nor other blockages to going to battle with full strength. The core approach to criminal defense victory includes experience, preparation, ability, fearlessness, caring about the client, a drive to win, and skilled battle rather than brute force.

What part does psychological warfare and sleight of hand have in the battle? Two months ago, I blogged about both. If psychological warfare and sleight of hand are to be employed, that should only come after being fully prepared.

Sun Tzu said: "Warfare is the Way of deception." Sun Tzu is important for all trial lawyers to read, and I have read and discussed him several times. When it comes to criminal defense, deception might come in all the more handy when the police or prosecution have something to hide (and when they have something to hide, does that not usually or always fly in the face of the prosecution’s duty to disclose exculpatory evidence?)

Thanks to local lawyer Jamison Koehler for reminding us how police and prosecutors can freak out when they think the defense might have the goods on them that will expose their wrongdoing or leave egg on their face. Jamison describes winning an acquittal motion after the police officer saw him watching an unrelated video, and then was on his best behavior on the witness stand, lest he testify counter to any videotape. Jamison talks about a colleague who obtained a dismissal of a prostitution prosecution after prominently displaying as "Exhibit 1" on counsel table a condom doctored to look used, and to make the police officer fear that it was the same condom he used to have sex with the defendant.

Most people get apprehensive, fearful, and downright freaking out over the unknown — and over deafening silence — including suspects, police, prosecutors, judges and everyone else.

I do not need my client freaking out in the courtroom and weakening our case and my ability to execute a strong defense. I try to help clients visualize how much more comfortable they will feel in court if they avoid lying to me, lest I present evidence or testimony or arguments at trial that backfire on us like a ton of cow dung thrown into a fan.

My clients and I are a team on the battlefield. I do my best to let my clients know this, and for us to work together as a winning team at every turn.

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