During my commute from our home in Gig Harbor to our law office in Seattle I’m listening to a book on tape about the observations of Sun Tzu in the 6th century BC generally referred to as The Art of War. I have read this material several times, but I gather new thoughts each time I review it. Here are some ideas from the book that I think apply to trial lawyers.
A couple of the precepts include the following thoughts. How many times have we signaled our entire approach to the defense through our broad deposition questions and overly verbose responses to discovery? We are ethically obligated to make full disclosure of facts and evidence, but trial tactics are privileged.
"signal to the East and strike to the west"
Aren’t we all guilty of yielding to the temptation to chase every defense side track thrown up to distract us from the strongest point in our case. As we do so we create confusion and doubt over issues that aren’t the key ones we should be focusing upon.
"avoid the strong points and attack the weak"
Have you ever been in trial and had a really bad day? I have and this thought seemed very important in that regard: "Ultimate victory is not in winning every battle, but in defeating the enemy." That’s a good thought to keep in mind on a bad day in trial.
The book discusses "qi" from Taoism or Daosim. Tao can roughly be described as the flow of the universe or the force behind the natural order of things. It is that which keeps the universe balanced and in order. The flow of qi as the essential energy of action and existence. This concept and the idea of the yin and the yang is directly applicable to our trials. Things don’t always go the way we planned, intended or hoped. We need to not panic, but to "go with the flow" and keep moving ahead. This ability to not lose heart and not become depressed is essential for great trial lawyers.
When it comes to trial strategy, we need to give some thought to how we approach trials and how we proceed. One of the classic stories of Chinese literature and thought involves what is called "the ruse of the empty city." This is a famous story from a Chinese novel The Romance of Three Kingdoms. As a army of some 150,000 men and their general reach a city defended by general Zhuge Liang, there are only 5,000 defenders inside. Zhuge analyzes the situation and orders half of the soldiers to leave the city to another location. He has the remaining soldiers hide out of sight. He dresses some soldiers in civilian clothes and has them casually sweep streets near the gates to the city where they can be seen going about daily activities and then orders all the gates of the city thrown open.
Zhuge then goes to the area above the main gate where he is clearly visible. He is dressed in his finest clothes and has two page boys with him. One lights incense and the other fans him while he lays on a couch playing his zither in full sight of the opposing army. His own soldiers think he has lost his mind and are mystified by his actions. The other general, however studies the situation carefully and then orders his army to not invade the city, but instead to leave the area quickly saving the city and Zhuge’s army from sure defeat. Afterwards Zhuge explains that he knew the other general was a man of suspicion who knew Zhuge’s cautious nature in battle as one who rarely took risks of any kind. He also knew that Zhuge employed misdirection and ambushes as a tactic of war, so he concluded this was a well laid out trap and ambush. Zhuge won the battle without fighting a war. We can all draw the lesson from this story about the benefit of tactical decisions in trial.