Wednesday, January 13, 2010

The Art of War

I think anyone who litigates should read Sun Tzu's The Art of War. Surround and attack when you outnumber your opponent. Evade when you're outnumbered. And if evenly matched, you may offer battle.

The real world implications are obvious. Extrapolated further, always negotiate from a position of strength or you're not're begging. I have gotten very good plea deals after filing suppression motions that had merit.

Know they enemy. For me the enemy is not the prosecutor. It's the case. I go to war with the case. The prosecution just prepares the case for conflict. I use the rules of discovery to assess the strength of the enemy.

If I have a crap case, it's a crap case. Threatening World War 16 with scorched Earth isn't going to produce a good plea offer if everyone knows the case is a loser at trial. Right? And unfortunately I don't have 25 years experience that might make a young prosecutor think perhaps I could pull a not guilty out of a hat.

At my point in my career and where I practice, it's essential that I have good facts; either exculpatory facts or ones that can be argued like hell. In a close case, I have to own the jury or at least the right juror(s).

The Art of War as I see it, is knowing when to go to war. I see no wisdom in starting a war I cannot win. A war consumes tremendous resources such as time and money. In my business there is a generally a shortage of both.

Carl von Clausewitz wrote "war is a mere continuation of politics by other means." What does that statement mean to me? Is litigating lawyering by other means? Not all lawyers litigate. In fact, I doubt most do. Food for thought.


No comments:

Post a Comment

Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.