Sunday, August 14, 2011


Principles of War Guide a Winning Cross-Examination

Starting sometime in the seventies it became fashionable for businessmen to read The Art of War by Sun Tzu and A Book of Five Rings by Miyamoto Musashi. Executives allegedly found the ancient Oriental precepts of waging war applicable to the dog-eat-dog business world. It may be chic and stylish to study the Tao of the inscrutable Orient, but we need search no farther than the ROTC class at our nearest college or university to find all the quasi-military guidance we need. American military science teaches that nine principles govern military strategy. These principles of war apply as readily to a game of chess as to total global warfare. They also apply to the trial of a criminal case or the cross-examination of a witness. They are: Objective, Offensive, Mass, Maneuver, Economy of Force, Security, Surprise, Unity of Command, and Simplicity.

In this, the first of a three-part series, the principles of Objective, Offensive and Mass are explored.

OBJECTIVE: “Direct every [cross-examination] toward a clearly defined, decisive, and attainable objective. . . . Every [cross examiner] must understand and clearly define his objective and consider each contemplated action in light thereof.” [Thomas E. Griess, Ed., The West Point Military History Series: Definitions and Doctrine of the Military Art, p. 10, Avery Publishing Group, Wayne, NJ, 1984]. If we don’t know where we’re going, we probably won’t like it when we get there. We set our main objective as persuasion of the fact finder to accept our history of the event we are litigating. On the road to the main objective we must set minor and preliminary objectives leading toward the main objective. When we rise to cross-examine a witness, we must keep our case theory always in sight, and have as our goal clearly defined, obtainable preliminary objectives. Game Theory describes two types of games: zero sum games which result in a clear winner and a clear loser, and non-zero sum games in which both sides can win and both sides can lose.

Cross-examination is a non zero sum game. We may not have the wherewithal to achieve the absolute destruction of an individual witness, but simply minimizing the witness’s affect may be all that we require to achieve our ultimate objective. We don’t engage the witness on points we know we cannot win. We don’t seek unobtainable annihilation when attrition will suffice. We take the witness on in areas where we know him to be vulnerable and we inflict maximum damage to the opponent’s case while risking minimal damage to our own. We don’t destroy witnesses for the sheer sake of destruction. We calculate everything within the framework of persuading the fact finder to endorse our case theory.

OFFENSIVE: “Seize, retain, and exploit the initiative. Offensive action is necessary to achieve decisive results and to maintain freedom of action. It permits the [cross-examiner] to exercise initiative and impose his will on the [witness], to set the terms and select the place of battle, to exploit enemy weaknesses and rapidly changing situations, and to react to unexpected developments.” [Ibid]. As Robert Heinlein said, no “department of defense” ever won a war. We win our case by going on the offensive, taking the battle to the enemy. On cross-examination, we must take control of the witness and dynamically make our points with him. We have no room for timidity. We must exude confidence in the justness of our cause and confidence in the facts we seek to establish through the witness.

MASS: “Concentrate [the attack] at the decisive place and time. . . . Proper application of this principle . . . may permit [one cross examining from a position of weakness] to achieve . . . superiority at the point of decision.” [Ibid]. That which we must prove to emerge victorious, we want to prove in the most persuasive way. When we cross examine a witness, we must concentrate our firepower on the weakest parts of the witness’s testimony. We order our questions so as to pile up the persuasiveness of helpful facts. We then drive those helpful facts home. Judicious application of mass will corkscrew helpful facts out of a reluctant witness.

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