Winning at Trial Using Sun Tzu S the Art of War

Excerpts from

The Art of Trial Warfare

Winning at Trial Using Sun Tzu’s The Art of War

Michael S. Waddington

Based on The Art of War, by Sun Tzu - Translated by Lionel Giles

Note: This book is not a legal treatise or technical course in trial advocacy. Rather, it is a study on how the teachings of the ancient warrior philosopher, Sun Tzu, can be applied to modern trial practice.

Disclaimer: The Trial Warrior, the fictional character in this book, is a male. He is based on the experiences of the author and therefore the pronouns he/him/his are used throughout the book.

Nobody ever defended anything successfully; there is only attack and attack and attack some more.

―GEORGE S. PATTON

CONTENTS

Introduction 13 1. Laying Plans 17 2. Waging War 29 3. Attack by Stratagem 35 4. Tactical Dispositions 41 5. Energy 49 6. Weak Points and Strong 57 7. Maneuvering 77 8. Variation in Tactics 95 9. The Army on the March 105 10. Terrain 115 11. The Nine Situations 121 12. The Attack by Fire 127 13. The Use of Spies 135 Conclusion 143 About the Author 145

Introduction

The Trial Warrior’s Journey

The life of a trial lawyer is often lonely, and thankless. When called into battle, a trial lawyer’s client expects a victory, no matter the odds.

Trials are like war, and war can be hell—for the losing party, their loved ones, and the lawyers fighting them.

In the end, someone may lose their freedom, their fortune, or both. For a criminal defense lawyer, a trial is akin to going to a funeral where the accused is the deceased. The accused and his family expect you, like a voodoo doctor, to bring the accused back to life. If you succeed, then hallelujah, you are a god. If you fail, regardless of how guilty your client was, you are viewed as a failure, a worthless attorney.

When a client is carted off to jail, the feeling inside the courtroom is reminiscent of a family funeral, but worse, because you—as the lawyer—played a role in the death. The client and his family will forever blame you. Few criminals accept responsibility for their actions. Almost all rationalize, make excuses, or shift the blame. It is human nature. It is easier to blame the lawyer, than to admit to having any flaws.

Knowing this, week after week, year after year, I go to trial and fight against staggering odds. I face down opponents who have stacked the deck so much they truly believe they cannot be defeated. In criminal courts, the accused is supposed to lose. After all, innocent people are not supposed to be brought to trial.

In my first felony trial, I was beaten down badly by the prosecution, the judge, and the facts of the case. I did everything I was taught, but failed miserably, nonetheless. What went wrong remains a reminder to this day: In order to win, in a system where I am supposed to lose, I must change the way I fight.

Around this time, I read a book my father gave me when I was commissioned as a 2nd Lieutenant in the Army. The book was Sun Tzu’s, The Art of War. Both an ancient Chinese warrior and philosopher, Sun Tzu’s lessons are timeless. They provide insight into how to defeat opponents when you are the underdog.

As a young trial lawyer, I learned that to win, I had to live by a code and a system that would work in any situation. The answers were found in The Art of War.

Now, after fighting hundreds of contested trials, over three continents, I can say with certainty that Sun Tzu’s principles, if followed, will help trial lawyers develop the strategies and tactics necessary to fight and beat opponents that have them outnumbered and outgunned.

In this book, I carefully selected lessons from The Art of War that best apply to trial practice. Each lesson should be read and contemplated; they have many meanings and apply to a multitude of situations. My comments are only one of many interpretations of Sun Tzu’s lessons, and should be considered a starting point.

Trial is war. To succeed you must study and master The Art of War, on both a strategic and tactical level. You must master yourself and your opponents. You must be physically and mentally disciplined. Most importantly, you must always be ready to aggressively attack and overwhelm your opponents. Only then will you become a Trial Warrior.

Chapter I

Laying Plans

Sun Tzu said:

The art of war is of vital importance to the State. It is a matter of life and death, a road either to safety or to ruin. Hence it is a subject of inquiry which can on no account be neglected.[1]

To the Trial Warrior, losing a courtroom battle can literally mean life or death for his client. It can also result in the loss of freedom, money, and family—and most tragically, his or her children. The Trial Warrior does not take this task lightly. He is always prepared to defend his client’s life, liberty, and property like it is his own. He is constantly studying, learning, and practicing the art of trial warfare. He surrounds himself with fellow Trial Warriors. Like warriors of long ago, they share their war stories and rely on one another. They share in each other's glorious victories and learn from each other's defeats.

The Trial Warrior looks forward with eager anticipation to his next trial, for his next chance at victory, for there is no greater glory than to fight and win a trial when the deck was stacked against him in a trial he was supposed to lose. Such is the life of the Trial Warrior. He is fearless, while always endeavoring to be the best at his craft.

Sun Tzu said:

As circumstances are favorable, one should modify one's plans.[2]

The Trial Warrior knows that while planning for trial is important, relying on a set plan can often lead to disaster. A well-known military quote beautifully illustrates this point: “No plan survives contact with the enemy.”[3]

Before trial, the Trial Warrior carefully plans and prepares, but is always ready to modify plans to exploit a weakness or seize an opportunity. The Trial Warrior relishes when his opponent plans and rehearses their entire case, from the opening statement to the cross-examinations and closing. When the Trial Warrior ambushes his opponents and disrupts their plans, they often panic, and their case crumbles. Many lawyers will stick to their failing plan, although defeat is imminent. This is a weakness that can be exploited time and time again.

This lesson also applies to cross-examining witnesses. The Trial Warrior is nimble. When cross-examining, the Trial Warrior listens closely to the witness’s answers, carefully studying their body language and facial expressions. He bases his follow-up question on their answer, or their failure to answer. When a witness gives a non-responsive or evasive answer, they are often hiding information or lying. This is when the Trial Warrior strikes and destroys the witness.

A lawyer that sticks to pre-scripted questions will often miss holes in witness testimony and then miss the opportunity to exploit those holes. You will fail your client if you are rigid and unable to modify your

CHAPTER II

Waging War

Sun Tzu said:

When you engage in actual fighting, if victory is long in coming, then men's weapons will grow dull and their ardor will be damped. If you lay siege to a town, you will exhaust your strength. [4]

Thus, though we have heard of stupid haste in war, cleverness has never been seen associated with long delays. [5]

There is no instance of a country having benefited from prolonged warfare. [6]

In war, then, let your great object be victory, not lengthy campaigns. [7]

The Trial Warrior has one goal: To win. When his opponents drag out the process, hoping he will quit, the Trial Warrior moves quickly and decisively in preparation for battle.

When preparing for trial, he follows a simple motto: “Never do anything useless.” He prepares to attack the weaknesses in his opponent’s case. He does not waste time filing frivolous motions and interviewing pointless witnesses.

At trial, he presents his case with speed and efficiency. He knows juries have a limited attention span and bore of long-winded lawyers.

In his opening statement, he does not waste words thanking the jury or coddling them. He tells them, up front, why he should win the case and then highlights the weaknesses in his opponent’s case.

When questioning witnesses, he gets to the point quickly and does not squander words. He stands up, makes his point in as few words as possible, and sits down.

He does not question a witness unless it is necessary. His goal is to win, not to talk. If talking does not bring him closer to victory, then he does not speak. Some of his colleagues worry that if they do not attack every witness and argue every minor point, their client will think that they are a bad lawyer.

The Trial Warrior understands that the jury is his audience, not his client, and jurors do not like rambling lawyers. By asking only necessary and relevant questions, he shows discipline and conveys strength. The next time he speaks the jury will listen —they’ll know he only speaks when necessary.

CHAPTER V

Energy

Sun Tzu said:

The control of a large force is the same principle as the control of a few men: it is merely a question of dividing up their numbers.[8]

The Trial Warrior is not intimidated by opponents who have legions of lawyers sitting at their trial table. He knows that during trial, only one person can speak at a time. Bloated trial teams are easy prey; they cannot make quick decisions for they have to discuss every move.

Nor is he overwhelmed by a large number of witnesses. He knows opposing counsel will often call more witnesses than are necessary. The Trial Warrior savors this moment, for he has mastered the fundamentals, and looks forward to taking apart the witnesses one by one.

Sun Tzu said:

In battle, there are not more than two methods of attack--the direct and the indirect; yet these two in combination give rise to an endless series of maneuvers.[9]

The direct and the indirect lead on to each other in turn. It is like moving in a circle--you never come to an end. Who can exhaust the possibilities of their combination?[10]

The Trial Warrior is always on the attack. Through training and experience, he has mastered the art of impeachment.

In trial, he can attack a witness directly or indirectly. In a direct attack, he impeaches a witness while the witness is on the stand. In an indirect attack, the Trial Warrior impeaches a witness with another witness, or piece of evidence. Both types must be skillfully set up and executed to be effective. The Trial Warrior is creative when planning his attacks; he weaves them together so the witness is caught off guard.

The Trial Warrior uses the following impeachment techniques to damage his opponent’s case:

• Prior inconsistent statement
• Motive
• Bias
• Character for untruthfulness
• Impeachment by omission
• Prior conviction(s)
• Instances of misconduct not resulting in a conviction (past lying or deceptive conduct)
• Prior inconsistent acts
• Impeachment by contradiction
• Defects in competency, ability to observe and recall

When used in combination, these techniques offer endless attack possibilities for the Trial Warrior.

CHAPTER VI

Weak Points and Strong

Sun Tzu said:

In war, the way is to avoid what is strong and to strike at what is weak.[11]

To win, the Trial Warrior must find and attack the weaknesses in his opponent’s case. Whether it is one, two, or fifty, every case has its weaknesses. The Trial Warrior keeps his plans secret. Then at trial, he audaciously attacks these weaknesses, and forces his opponent into a defensive position.

Sun Tzu’s wise words, “So in war, the way is to avoid what is strong and to strike at what is weak,” are core to the Trial Warrior’s strategy—and the key to victory.

Sun Tzu said:

Maneuvering with an army is advantageous; with an undisciplined multitude, most dangerous.[12]

Discipline is vital in all forms of warfare, including trial warfare. The Trial Warrior must be more disciplined than his opponents. He does not make a move unless it will bring him closer to victory.

Many lawyers are undisciplined at trial. They make unnecessary objections and present weak arguments. The Trial Warrior understands that before speaking, he must think twice, and then say nothing. Just because one can speak does not mean one always should. Just because one can object does not mean one always should. The same applies to filing motions, calling witnesses, asking questions, and every other aspect of trial.

When opponents are undisciplined, they make mistakes, and mistakes lose trials.

Sun Tzu said:

We cannot enter into alliances until we are acquainted with the designs of our neighbors.[13]

The Trial Warrior never trusts co-defendants or their lawyers, especially ones who are weak and cowardly. While they may have a common cause, a co-defendant can be dangerous. The Trial Warrior is cautious about what he reveals to them. He understands they can, and probably will, turn against his client at any moment.

The Trial Warrior prepares against his co-defendants following the teachings of Sun Tzu, as he would against any other enemy.

Sun Tzu said:

When envoys are sent with compliments in their mouths, it is a sign that the enemy wishes for a truce. [14]

The Trial Warrior can sense when his opponents want a truce. If they approach in a calm, cordial manner, and offer definite and favorable terms, then they are usually serious about avoiding conflict. He also knows when an opponent is impatient and wishes to resolve a case quickly, they will often accept a truce that is highly beneficial to the Trial Warrior’s client.

CHAPTER XIII

The Use of Spies[15]

Sun Tzu said:

Knowledge of the enemy's dispositions can only be obtained from other men. [16]

The Trial Warrior is friendly and professional with the staff of his opposing counsel, including secretaries, paralegals, and interns. Instead of being brash and rude, he sincerely greets them with a smile and treats them with respect and dignity. He often treats them better than their employer does. Over time, they begin to like, trust, and respect him.

When talking with the staff of opposing counsel, he may gain insight into their intentions and plans—insight he can later use to win his case. The Trial Warrior never betrays the trust of staff, and keeps their confidences closely guarded.

Conclusion

Practice is the key to mastering The Art of Trial Warfare. Mastering the art is an ongoing, lifetime

e journey. With every case, one learns something new about oneself, the law, and trial advocacy.

It is vital to get as much jury trial practice as possible, because there is no substitute for experience. Meanwhile, learn from the masters by watching trials and attending conferences where outstanding trial lawyers are speaking. Befriend trial lawyers and learn from their experiences. Read as many books by great trial lawyers as possible.

If you spend your career avoiding the courtroom and pleading every client guilty or settling every case, you will never be a great trial lawyer. When the time comes for you to fight a big case, you will find yourself woefully unprepared and outgunned.

You can learn more in one contested jury trial than in a dozen CLEs. The lawyers who spend the most time trying jury trials and learning from their mistakes will rise to the top and become courtroom legends.

ABOUT THE AUTHOR

Michael Waddington is a criminal defense lawyer who has successfully defended cases in military courtrooms around the world, including Japan, South Korea, Germany, Iraq, Bahrain, Italy, England, and across the United States.

He’s been involved in some of the highest profile court martial cases—from the “War on Terror” to the “War on Sex Assault”—and has been reported on and quoted by hundreds of major media sources worldwide. He has provided consultation services to CNN Investigative Reports, 60 Minutes, Katie Couric, ABC Nightline, the BBC, German Public Television, CNN, CBS, and the Golden Globe winning TV series, “The Good Wife.”

He appeared in a major CNN Documentary, 2009’s “Killings at the Canal,” and some of his cases have been the subject of books and movies, including the Academy Award Winning Documentary “Taxi to the Dark Side,” and the 2013 documentary, “The Kill Team.”