Win First and Then Go To Trial

Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

Sun Tzu, Art of War, Ch. IV

I know that Sun Tzu’s Art of War is beloved by a certain type of businessman, the type that you might not want to be on a long car ride with. The type that takes Glengarry Glen Ross too seriously. Although I’m suspicious of its application to business, The Art of War does have some ideas that are useful to criminal prosecution, especially as it relates to case preparation.

Although I will quote Sun Tzu several times, this first quote rang true more than any other. I will translate it slightly. “Victorious prosecutors seek to win first and then go to trial, while defeated prosecutors go to trial first and then seek to win.”

Most Prosecutors Focus Only on the Strength of the Evidence

if one force is hurled against another ten times its size, the result will be the flight of the former.

Sun Tzu, The Art of War, Ch. X

Sun Tzu intuitively understands that the bigger force usually wins. So it goes in court: the side with the strongest evidence usually wins. This basic fact is the beginning of an understanding of trial strategy, but not the end. Unfortunately, prosecutors don’t take strategy as seriously as they might. The prevailing view seems to be that size matters. Just generate as much inculpatory evidence as you can using your law enforcement resources. Then load it into your trial train and run over the defense. Most of this work is done by others; specifically the police. You are discouraged from doing investigative work by the rules on prosecutorial immunity. Your law clerk may help you with jail calls, if you’re lucky enough to have a clerk. You may have to subpoena medical records or send evidence out for testing.

Surprise plays no role in trial tactics. The discovery rules prevent surprise, as do prosecutorial ethics. Preliminary hearings allow both sides to test the evidence before trial. Motions in limine allow us to resolve many of the contested issues at trial before the jury even arrives. Indeed, some judges will punish you for not explaining your strategy in advance and ensuring it is judicially approved.

The Filing Decision is the First and Most Important Tactical Decision of the Case

He will win who knows when to fight and when not to fight.

Sun Tzu, The Art of War, Ch. III

What happens in the DA’s office is much more important to trial success than what happens in the courtroom. Trial success starts with filing. Specifically, it starts with filing discipline. Prosecutors should not file every case that they are referred. They should judiciously choose which case to file, and carefully control themselves to avoid common pitfalls. Specifically, there are several major errors made by filers. First, many filers lose the ability to evaluate cases because they don’t try cases anymore. Most filers haven’t prosecuted cases for many years. They don’t remember, or have inaccurate memories, about how to try cases. This leaves them unable to evaluate the strengths or weaknesses of a case. Filers should be careful to talk about “close calls” with the attorneys that will actually try the cases.

Second, many filers are unwilling to have tough discussions with law enforcement. They have relationships with the filing detectives in their local area. They know that the detectives want their cases to be picked up. Detectives view their work as a failure if a filer says they don’t believe the case can be proved. Detectives may view their work as a waste of time if it does not result in a case. Some detectives even take declinations personally. They view a declination as a referendum of their job performance. They read in to the declination and view as a message that the detective “doesn’t know the value of a case.”

Third, filers may look at the criminal record of the defendant and decide to file a difficult case so that a dangerous person can be taken off the street. This is not entirely a bad practice. Prosecutors should consider a person’s record and public safety when making a filing decision. But a person’s record should only be considered after an initial determination is made as to whether the case is provable. If, and only if, a case is provable should a filer consider the record.

Fourth, filers may file a weak case in order to obtain a plea bargain. Again, the first consideration for a filer should be whether the case is provable. Filers, who do not negotiate plea bargains, should be careful about making these types of decisions for the attorneys who do negotiate.

Fifth, filers often do not consider that each additional filed case leaves less time to work existing cases. There are only so many criminal trials that a prosecutors office can put on. Each trial requires work. More cases means more total work and less work per case. This is especially true when new hiring does not keep pace with a growing workload. Disciplined filing requires an overall view of the resources of the office and the court.

Prosecutors Who Want to Convict Should Work Hard in the Office

Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.

Sun Tzu, The Art of War, Ch. VI.

This is the most important lesson from Sun Tzu. You must arrive in the courtroom having already won the case by preparation. The trial should feel like the execution of a plan, not like an ad-libbing improv exercise. Indeed, a well-prepared case is much more likely to lead to a dispositive. Defendants can tell when they are cornered.

Here are some practical suggestions:

• Prepare a case workbook
• Use a to do list
• Write down things that must be done
• Talk to your coworkers in detail about the case
• Organize your material
• Read everything you have
• Visit the scene
• Prepare jury instructions
• Subpoena and prepare your witnesses
• Prepare your exhibits
• Prepare your opening statement and closing argument
• Get the law together

There are Lessons Here for Management

Soldiers must be treated in the first instance with humanity, but kept under control by means of iron discipline. This is a certain road to victory.

Sun Tzu, The Art of War, Ch. IX

In large trial units, cases are often handed off before trial. Up until trial, the case was handled by many different lawyers for various amounts of time, none of whom had to present the case. Invariably, no one takes ownership of the case and work is left undone before trial. Trial deputies are left holding the bag and scrambling to complete the investigation and delay the trial. This is “going to war first and then seeking to win.” It’s a recipe for disaster. Sun Tzu would hate it.

Management must prevent filers from making filing mistakes. Management should carefully control the quality of the filings. They must also prevent cases from languishing without attention because they bounce from prosecutor to prosecutor. Vertical prosecution should be the rule, not the exception. The trial handoff system does not produce good results.

Instead, prosecutors should be treated humanely. They should be given time to prepare their cases and present them effectively. If this is done, trials will take care of themselves.