Sun Tzu and the Art of Criminal Defense

Chapter II,

Waging War

1.    Generally, operations of war require one thousand fast four-horse chariots, one thousand four-horse wagons covered in leather, and one hundred thousand mailed troops.

2.    When provisions are transported for a thousand li expenditures at home and in the field, stipends for the entertainment of advisers and visitors, the cost of materials such as glue and lacquer, and of chariots and armor, will amount to one thousand pieces of gold a day.  After this money is in hand, one hundred thousand troops may be raised.

War is expensive.  Trials are expensive too.  There’s discovery motions to be filed, arguments to be made before the court, bail to be argued about, appealed, and posted, investigations to be done, experts to be hired, social workers to be contracted.  And, of course, lawyers to be paid.
Now, we’re not talking gold pieces here (neither did Sun Tzu – the term he uses actually refers more to metallic currency), but these expenditures are still very real.  One can rack up quite a tally with prolonged trial.  One might be able to use this to one’s advantage, by causing the prosecution to exert more of their resources than you do.  But it’s not necessarily Sun Tzu’s recommendation.

3.     Victory is the main object in war.  If this is long delayed, weapons are blunted and morale depressed.  When troops attack cities, their strength will be exhausted.

There’s no use in waging a fight that one is too tired to fight.  Sun Tzu has more to say about the use of energy in future chapters – this chapter focuses solely on the costs of maneuvering and fighting a war.
Never are the ravages of time felt more than when a client is in jail held on bail he cannot make (or because his bail was revoked.)  Yes, on the one hand, a client is accruing time that he can use should he lose his case.  But that’s a pessimistic and bleak outlook, presupposing already that the client will have to do some amount of jail time.  So this view is already, as Sun Tzu put it, one of blunted weapons and depressed morale.
But even a free client feels the pressure of every court date.  It’s easy for us as lawyers to forget how much it costs people to come to court – these are our jobs, after all.  We’re getting paid to hurry up and wait in a stuffy court room with fifty other cases in front of us.  Our clients, though, are missing work, time with family, appointments, and other personal business to be there in court.  Eventually, that waiting wears on them, and they’ll want to seek the quick resolution – which isn’t always of advantage.

4.     When the army engages in protracted campaigns the resources of the state will not suffice.

The state here refers to the client, and it harkens back to the point I made above.  Everyone has a breaking point – you don’t want to find out what your client’s might be.

5.     When your weapons are dulled and ardor dampened, your strength exhausted and treasure spent, neighboring rulers will take advantage of your distress to act.  And even though you have wise counselors, none will be able to lay good plans for the future.

Here is Sun Tzu’s dire warning against waiting too long.  Eventually, you will hit your breaking point – and then your enemies (“neighboring rulers”, as in Sun Tzu’s time war was waged against your neighbor to expand your holdings) will take advantage of you.  If a client is exhausted, he will take a bad deal instead of going to trial.  Managing that exhaustion so it doesn’t come at the wrong time is a fundamental aspect of our job (and, honestly, one I still need to work on.)

6.     Thus, while we have heard of blundering swiftness in war, we have not yet seen a clever operation that was prolonged.

Now here I will take some exception to Sun Tzu.  Since the scales are so much different between court and war, it could be true that victory can be achieved through prolongation of time.  This will not always be possible, however, as discussed, but with proper management of time and pressure, a case could be properly “seasoned” with time into a victory.
One must, however, always take advantage upon the ripening of a case.  So in that sense, Sun Tzu and I are in complete agreement – act neither too harshly (“blundering swiftness”), nor too slowly (such that you lose your opportunity, and the case goes from ripe to vinegar.)

7.     For there has never been a protracted war from which a country has benefited.

Again – may be true for warfare, but not necessarily true for criminal defense.  This is quite the opposite for prosecutors, however, and obviously for the courts, so the fine art of getting a continuance is something that a good defense attorney should master.

8.     Thus those unable to understand the dangers inherent in employing troops are equally unable to understand the advantageous ways of doing so.

This harkens back to my point earlier – you have to know when to act, not just that you have to act.  You have to be aware of the dangers of what you’re doing, but also of the benefits.
The paragraphs that follow are more directly related to war and the maintenance of the army.  While some zen-like wisdom might be obtained in reading through them on managing your client’s needs, such concepts are currently beyond me, and so I merely present them to you.  Feel free to comment as necessary.

9.     Those adept in waging war do not require a second levy of conscripts nor more than one provisioning.

10.    They carry equipment from the homeland; they rely for provisions on the enemy.  Thus the army is plentifully provided with food.

Here Sun Tzu speaks of poaching from the enemy in order to strengthen one’s own army.  Normally, one would think that this type of behavior is inapplicable in the field of criminal defense – but not so!  Think about the basic theory of constructive cross-examination: the entire point is to make your case based on their witnesses.  A defense attorney who can poach what he needs from the prosecution’s evidence is thus following Sun Tzu’s advice here: rely on your enemy for provisions.

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Posted by Alex Ramos on July 30th, 2009 :: Filed under Tactics and Trial Strategies
Tags :: sun tzu, Tactics and Trial Strategies
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