CROSS-EXAMINATION AND THE ART OF WAR – PART 3

9 Principles of War Guide a Winning Cross-Examination

This is the third and last in a series of articles (go here for part one and here for part two) on the principles of war as described in Art of War by Sun Tzu and how those same principles apply to the cross-examination of a witness. The three principles explored here are surprise, unity of command and simplicity.

SURPRISE: “Strike the enemy at a time and/or place and in a manner for which he is unprepared. Surprise can decisively shift the balance of combat power. With surprise, success out of proportion to the effort expended may be obtained. . . . It is not essentialthat the enemy be taken unaware, but only that he becomes aware too late to react effectively.” [Ibid, pp. 10, 11]. Once we have carefully and surreptitiously laid the groundwork, we must end the line of questions with a payoff or punchline that makes the point crystal clear. If we can surprise a witness with a question, we can go a long way toward achieving our aim. There are two kinds of surprise; one is praiseworthy, the other blameworthy.

UNITY OF COMMAND: “Unity of command results in unity of effort by coordinating the actions of all forces and directing them toward a common goal.” [Ibid, p. 10]. On one episode of the fifties radio show, Tales of the Texas Rangers, Joel McRae tells an apocryphal story about a small town sheriff who called the Texas Rangers for reinforcements in dealing with a riot that was brewing. When only one Ranger answered the call, the sheriff asked why. The Ranger replied, “You’re only expecting one riot, aren’t you?” Most trial lawyers have the type of personality that prefers “one riot, one ranger.” We are simply too much the prima donna to ever willingly share the glory with someone else. Some cases, however, are too large and too complex for the Lone Ranger mentality. We need a trial team. Notice I said team. A collection of Lone Rangers pretending to cooperate can be worse than only one Lone Ranger. Every trial team must have a captain, one person who calls the shots.

Marcia Clark, in Beyond a Doubt, reminisces that Gil Garcetti appointed her “co-lead counsel” on the O.J. Simpson case. This decision may not have doomed the prosecution from the outset, but it certainly didn’t help matters at all. Co-lead counsel equals no lead counsel. We must have one vision for the presentation of the case, one interpretation presented to the jury, one single overriding theory for the cross-examination of the witnesses. Many trial advocacy schools have mock juries to listen to opening statements and final arguments and then deliver a verdict based on those arguments. For sake of illustration to the students, different lawyers give openings and closings for the same side. Frequently, the lawyer who closes hasn’t even heard the opening given by his “colleague.” In debriefings, the jurors almost unanimously complain that they were confused by the differing outlooks between the lawyers who opened and closed for the same sides.

The British principles of war do not include “unity of command.” They replace it with “cooperation.” When we express this principle as “cooperation” rather than “unity of command,” we can see that even a solo advocate can violate the principle. For example, it sometimes happens that defense witnesses in DUI cases will, when placed under oath before the fact finder, admit that the defendant was drinking heavily. They may have previously given statements to the effect that he was sober as a judge, but now they come forward with a facsimile of the true facts. What to do? Some lawyers would gleefully impeach them with the prior inconsistent statements about the defendant’s sobriety. Remember, we want “unity of effort by coordinating [actions] toward a common goal.”[Ibid]. If we simply do a friendly cross emphasizing the defendant’s drunkenness, then our facts cohere and cooperate to prove up our case.

SIMPLICITY: “Prepare clear, uncomplicated plans and [ask] clear, concise [questions] to insure thorough understanding. Simplicity contributes to successful operations by reducing the possibility of misunderstanding and confusion.” [Ibid, p. 11]. Especially when we are cross examining experts, we can lose ourselves, the jury, and our case in a forest of complexities. Remember the KISS Principle. Keep it simple, stupid.

CROSS-EXAMINATION AND THE ART OF WAR – PART 2

Principles of War Guide a Winning Cross-Examination

This is the second in a series on the principles of war as described in Art of War by Sun Tzu and how those same principles apply to the cross-examination of a witness. The three principles explored here are maneuver, economy of force and security.

MANEUVER: “Place the enemy in a position of disadvantage through the flexible application of [lines of questioning]. The object of maneuver is to concentrate (or disperse) [effort] in a manner that will place the enemy in a position of disadvantage. . . .”[Ibid]. An excellent example of maneuver in the courtroom comes from the movie, A Few Good Men. There the defense team chose to deal with the adverse testimony of the Government’s medical witness on several fronts. First, they objected to his qualifications, pointing out that he had no training in forensics. Second, through a relatively friendly cross-examination, they raised the possibility that the victim’s death could have come from natural causes. Third, through a confrontational exchange, they suggested that the doctor might be inclined to fudge his findings to cover for his own incompetence in giving the victim a clean bill of health shortly before his death.

The doctrines of primacy and recency also serve as examples of maneuver. We can do a legally sufficient job of making our points in any particular order, but a persuasively sufficient job requires that we order our points in as compelling a fashion as possible. We can analogize a cross-examination to a chess game. Chess is divided into the opening, middle game, and endgame. Volume after volume has been written on the subjects of opening and endgame. Chess masters know that they must start strong and end strong. As it is with chess, so it is with cross-examination. Picking a strong beginning and a strong ending constitutes a good start, but the cross examiner must also arrange his middle material so as bring maximum persuasion to bear on the fact finder.

ECONOMY OF FORCE: “Allocate minimum essential combat power to secondary efforts. . . . Minimum essential means must be employed at points other than that of the main effort.” [Ibid]. Where on the one hand we want to mass our forces on the main objective, on the other hand we want to spend just enough time, energy, and effort on the lesser matters. When we cross-examine a witness, minimal time and effort should be expended on fruitless lines of inquiry, so that we can expend maximum effort on areas which will yield a greater reward for our efforts. If we run the good ship Cross-examination aground pursuing high risk, low payoff lines of inquiry, the fact finder may not be nearly as impressed with our good work on more fruitful lines of inquiry.

SECURITY: “Security results from the measures taken by a [cross-examiner] to protect [him]self from espionage, observation, sabotage, harassment, or surprise.” [Ibid]. In this day of open discovery, our opponent potentially knows all the facts in our possession. What he does not know, and what the opposing witness doesn’t know, is how we intend to use those facts. A hostile witness who knows five questions ahead exactly what we are going to ask, will do his best to torpedo us. In such a situation we may have little hope of getting an unstudied, frank answer. We must sometimes craft our questions so that the witness finds our purpose opaque. Remember, however, that if the witness and opposing counsel don’t know what we’re up to, the jury likely won’t know either. We cannot save the significance of our carefully crafted lines of inquiry for final argument. The fact finder, not knowing the significance of the line of questioning, will have forgotten it by then. We must sequence our questions so as to make full use of the next principle of war.

CROSS-EXAMINATION AND THE ART OF WAR

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.