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.

Marcia Clark is a Frustrated Project Manager

The tactics…no, amateurs discuss tactics,…. Professional soldiers study logistics.

Tom Clancy

Consider this anecdote from World War I. The Germans had written a detailed plan for the invasion of France. It was so detailed that when mobilization day came, there was nothing for the lead general to do. He sat on his couch and read a novel. (See Quintin Barry, Moltke and His Generals at p. 136.) In a perfect world, this should be our situation when a defense lawyer announces ready. Everything should be done. I know that’s not reality. I’ve often heard the prosecutor’s motto: “Always ready and never prepared.” The late nights and scrambling that we associate with trial work is really associated with inadequate time to prepare. If we want to be more specific, we might say inadequate logistics, “the detailed coordination of a complex operation involving many people, facilities, or supplies.”

I enjoy reading about trial tactics, but I now understand that logistics are the most important part of a successful trial. You get your first hint of this when you can’t get your witnesses on the stand at preliminary hearing. Later, as you begin to try misdemeanors, you will need to preserve the chain of custody for the blood draw on a DUI, for example. As you get to violent crime, the challenges only increase with the importance of the case. Where is the murder weapon? Has it been tested by ballistics? Was enough blood kept for defense testing? Who lifted the prints? Who analyzed them?

These tasks are much more difficult than, say, closing argument, or questioning a witness. Nevertheless, there isn’t much written about trial logistics. This thought struck me as I read about a famous prosecutor complaining about being buried in defense discovery motions.

As primary litigator, I shouldn’t have been saddled with these day-to-day distractions. I should have been concentrating on building what is called the case-in-chief – the essence of a presentation that proves the defendant committed the crime. But there was absolutely no time for overall planning or, indeed, any creative though abut this case.

Marcia Clark, Without a Doubt (1997)

As I read this, I had two thoughts. First, this was the biggest case at the LA DA’s office at the time. They were reeling from a hung jury in the prosecution of the Menendez brothers, another high profile murder. They didn’t want to be embarrassed again. Is it possible that the office had so few resources that Clark had to respond to discovery motions herself, and had no time for “overall planning?” It’s possible, but unlikely. Several other lawyers have appeared already in the book, helping on other parts of the case, that could certainly handle discovery motions for Clark. It’s more likely that she did not delegate this work properly and the case suffered for it. I sympathize with her, the vast majority of cases are prosecuted by deputy district attorneys working alone. Much of case preparation is unstructured, and prosecutors can develop their own idiosyncratic ways of doing this, which come with a general distrust of the work of others. Although I understand these things, they don’t excuse the failure to delegate. This failure, at its heart, is a failure of logistics. Clark either failed to get adequate staff, or failed to use them.

My second thought was about a podcast called You’re Wrong About, which has an extended series of episodes on the O.J. Simpson trial. The hosts pick a subject and challenge the conventional wisdom. In this case, they were challenging the convential wisdom that Marcia Clark lost the “Trial of the Century.” They point out, correctly, that she was not in charge of the sloppy criminalist, the detectives who failed to adequately interview the defendant, the judge and his incorrect rulings, and the hidden prejudices of the first detective to enter Simpson’s property, Mark Fuhrman. She did not supervise them. Indeed, since they all worked for different agencies in the criminal justice system, none of which were the DA’s office, she had no ability to even reprimand them. When she discusses the investigation of the crime in Without a Doubt, she must constantly swallow her pride and put on a happy face if she wants to keep a working relationship with these people. This is a familiar scenario for many prosecutors. For that reason, the hosts of You’re Wrong About argue that she did not lose the Simpson trial. She was more like a frustrated project manager. He project failed because of people she couldn’t adequately manage or control.

This struck a chord with me. I kept thinking that it was related to an important big picture concept. Sure enough, on page 1 of my 1L criminal law book, the authors address this head-on.

To speak of the criminal justice “system” is something of a misnomer… the agencies of criminal justice are not part of a single, coherent organization. Their relationships with one another often are haphazard and uncoordinated. […] Each of the steps in the process is managed by an official who is, to a considerable degree, independent of the others, and the officials are responsible to different groups of constituents. […] The criminal justice system, in short, is extremely decentralized.

Kadish, Schulhofer, and Steiker, Criminal Law and Its Processes (8th Ed.)

This is the most important logistical lesson from the Simpson investigation. Indeed, I think it’s the most important lesson for any prosecutor seeking to improve her trial logistics. No one works for you. Not the sheriff investigating the crime, not the police making the arrest, not the coroner conduct the autopsy, not the jailer holding the defendant, not the judge conducting the trial and sentencing the defendant, not the correctional officers or parole officers responsible for the defendant after conviction. All of these groups are responsible to different organizations. None of the organizations are the DA’s Office.

I would point out these hard facts on page one of my book on trial logistics. We are managing a project where we have no control over those underneath us. We will be held responsible in a public courtroom for people who are not responsible to us. We have to find a way to get things done in this powerless situation. Maybe it’s personal charm. Maybe it’s yelling. Maybe it’s working tirelessly to do everything yourself. That definitely seems to be Marcia Clark’s method. Whatever it is, the stakes are high. So high that this message should be given on the first day of training, explicitly, instead of discovered in the true crime section or a battered textbook. Or worse, discovered through hard experience, like Clark did.

Notes

Prosecutors may have access to DA investigators. Since you are in their chain of command, DA investigators are a ray of hope in a dark situation. Use them if you can get them. But if you aren’t prosecuting a celebrity athlete/actor, you probably can’t get them.

There is a different way. In the federal system, the FBI, the US Attorneys, the federal bench, and the federal Bureau of Prisons all work for the Attorney General at the Department of Justice. Is this better? I’m not a federal prosecutor, I’m a real prosecutor, so I don’t know. The professors mentioned above think our “chaotic arrangement” is a “valuable mechanism for preventing the accumulation and centralization of power, with its accompanying dangers of abuse.” For what it’s worth.

Both logic and logistics ultimately derive from the Greek logos, meaning “reason.” But while logic derives directly from Greek, logistics took a longer route, first passing into French as logistique, meaning “art of calculating,” and then into English from there.

I realize that Tom Clancy, who is not a veteran, is a weird person to quote about logistics. I did it anyway, because Clancy is an English major, just like one of the hosts of You’re Wrong About, which had a nice symmetry to me. Since that’s not obvious to you, dear reader, I feel compelled to point it out here. Marcia Clark was a political science major, but she has written a lot of books, so I think she fits the type as well.

Orange Juice and Trial Tactics

Vincent Bugliosi likes orange juice but hates OJ. When “the sun is shining brightly in the morning and the orange juice is good” he’s “in a very generous and magnanimous mood.” He was not in such a mood when he wrote Outrage: The Five Reasons Why O.J. Simpson Got Away with Murder. If you are a lawyer, particularly a lawyer in criminal law, this book is an interesting treatise on tactics, as much as a history of a famous case.

Bugliosi packs the book with entertaining observations and aphorisms. “As a trial lawyer, intelligence is important only in the sense that it allows you to play the game, if you will… Beyond that, it doesn’t get you very far at all.” He emphasized that a successful prosecutor “takes charge” of the case. “The typical incompetence that one sees in the great run of prosecutors and trial lawyers in general – inadequate preparation.” “Whenever I prosecuted a murder case, I always at least aspired to a masterpiece.”

His philosophy is to introduce all the evidence. “[T]he prosecution should always convey to the jury that as representatives of the people they want to present all relevant evidence on the issue of guilt.” “I mean, that’s what the prosecutor does in a criminal case – present incriminating evidence.” He continues, “when you have exceedingly powerful evidence of guilt, you automatically offer it. You don’t stumble on your way to the courtroom over the smallest thread in your path.” “When you know the defense is going to present evidence damaging or unfavorable to your side, you present that evidence yourself.”

“What I try to do on direct examination, basically, is conduct my opponent’s cross-examination for him, but bringing out the information the way I want it to be brought out.”

His attitude towards juries: “with almost any jury, you have to spoon-feed them.” “I never take a chance on assuming a jury is going to see something important without my help.”

I loved his advice on how to deal with a disrespectful judge:

Back in chambers he should have been told, first in a very civil way, but if this was unavailing, much more assertively, that although he had the right to speak, if he chose, in a condescending way to the prosecutors outside the presence of the jury, he did not have a right to hurt the prosecutor’s clients, the people of the State of California, in any way whatsoever in front of the jury, and they therefore not only wouldn’t permit him to do so, but had an obligation to ensure that he did not. Therefore, if he had anything negative to say to them, it had to be outside the presence of the jury. In front of the jury he had to show them the same, identical respect they showed him, nothing more, nothing less.

“I’ve always considered final summation the most important part of the trial for the lawyer.” He hates lawyers who address “the jury after scandalously little preparation.” Far too often this results in their delivering arguments which are disjointed and sterile in articulation, and which, most injurious of all to their clients, omit a number of salient facts and inferences.”

I could go on and on. There are worse ways to learn tactics than by discussing this fascinating and controversial case. But if you aren’t a lawyer, you might try another OJ book instead.

Notes

I also read Chris Darden’s book, which contains this advice from a judge to Darden:

“Calm down, he said “and make sure never to appear angry or confrontational. Don’t take these cases personally. Treat the witnesses in a dignified manner and treat opposing counsel in the same way, no matter how much you may dislike them.

Darden followed this advice and turned around a losing streak early in his career.