Michael Waddington - The Art of Trial Warfare: Winning at Trial Using Sun Tzu’s The Art of War

The Art of Trial Warfare

Winning at Trial Using Sun Tzus The Art of War

Michael S. Waddington

Based on The Art of War , by Sun Tzu - Translated by Lionel Giles

Copyright 2016 by Michael Waddington

Printed in the United States of America.

First printing, 2016.

The Art of Trial Warfare: Winning at Trial Using Sun Tzus The Art of War

Based on The Art of War , by Sun Tzu, translated by Lionel Giles. First published 1910.

All rights reserved. No part of this publication may be reproduced, distributed or transmitted in any form or by any means, without prior written permission except for the use of brief quotations in a book review.

Michael Waddington

1018 Ashford Ave., Suite 3A-1

San Juan, PR 00907

www.artoftrialwarfare.com

www.ucmjdefense.com

The Art of Trial Warfare/ Michael Waddington -- 1st ed.

ISBN-13: 978-1523635894

Note: This book is not a legal treatise or technical course in trial advocacy. Rather, it is a study on how the teachings of the ancient warrior philosopher, Sun Tzu, can be applied to modern trial practice.

Disclaimer: The Trial Warrior, the fictional character in this book, is a male. He is based on the experiences of the author and therefore the pronouns he/him/his are used throughout the book.

Dedication

This book is dedicated to my children and warriors in training, Alexander and Emilia, who inspire everything I do.

Nobody ever defended anything successfully; there is only attack and attack and attack some more.

GEORGE S. PATTON

CONTENTS

Acknowledgments

Introduction

Laying Plans

Waging War

Attack by Stratagem

Tactical Dispositions

Weak Points and Strong

Maneuvering

Variation in Tactics

The Army on the March

Terrain

The Nine Situations

The Attack by Fire

The Use of Spies

Conclusion

Acknowledgments

There are many people to thank for their help in writing this book. First, my brilliant and beautiful wife and law partner, Alexandra, for patiently listening to my ramblings about Sun Tzu and trial practiceand encouraging me to put my thoughts on paper.

To the legendary trial lawyers I have studied over the years. Your teachings, and writings, give me inspiration, wisdom, and courage before I go into battle.

To all of the hard-assed military judges I have practiced in front of: As iron sharpens iron, thank you for sharpening me into the lawyer I am today.

Finally, Stacy Walsh, for her editing insights and invaluable help with this manuscript.

Introduction

The Trial Warriors Journey

The life of a trial lawyer is often lonely, and thankless. When called into battle, a trial lawyers client expects a victory, no matter the odds.

Trials are like war, and war can be hellfor the losing party, their loved ones, and the lawyers fighting them.

In the end, someone may lose their freedom, their fortune, or both. For a criminal defense lawyer, a trial is akin to going to a funeral where the accused is the deceased. The accused and his family expect you, like a voodoo doctor, to bring the accused back to life. If you succeed, then hallelujah, you are a god. If you fail, regardless of how guilty your client was, you are viewed as a failure, a worthless attorney.

When a client is carted off to jail, the feeling inside the courtroom is reminiscent of a family funeral, but worse, because youas the lawyerplayed a role in the death. The client and his family will forever blame you. Few criminals accept responsibility for their actions. Almost all rationalize, make excuses, or shift the blame. It is human nature. It is easier to blame the lawyer, than to admit to having any flaws.

Knowing this, week after week, year after year, I go to trial and fight against staggering odds. I face down opponents who have stacked the deck so much they truly believe they cannot be defeated. In criminal courts, the accused is supposed to lose. After all, innocent people are not supposed to be brought to trial.

In my first felony trial, I was beaten down badly by the prosecution, the judge, and the facts of the case. I did everything I was taught, but failed miserably, nonetheless. What went wrong remains a reminder to this day: In order to win, in a system where I am supposed to lose, I must change the way I fight.

Around this time, I read a book my father gave me when I was commissioned as a 2nd Lieutenant in the Army. The book was Sun Tzus, The Art of War . Both an ancient Chinese warrior and philosopher, Sun Tzus lessons are timeless. They provide insight into how to defeat opponents when you are the underdog.

As a young trial lawyer, I learned that to win, I had to live by a code and a system that would work in any situation. The answers were found in The Art of War .

Now, after fighting hundreds of contested trials, over three continents, I can say with certainty that Sun Tzus principles, if followed, will help trial lawyers develop the strategies and tactics necessary to fight and beat opponents that have them outnumbered and outgunned.

In this book, I carefully selected lessons from The Art of War that best apply to trial practice. Each lesson should be read and contemplated; they have many meanings and apply to a multitude of situations. My comments are only one of many interpretations of Sun Tzus lessons, and should be considered a starting point.

Trial is war. To succeed you must study and master The Art of War , on both a strategic and tactical level. You must master yourself and your opponents. You must be physically and mentally disciplined. Most importantly, you must always be ready to aggressively attack and overwhelm your opponents. Only then will you become a Trial Warrior.

Chapter I

Laying Plans

Sun Tzu said:

The art of war is of vital importance to the State. It is a matter of life and death, a road either to safety or to ruin. Hence it is a subject of inquiry which can on no account be neglected.

To the Trial Warrior, losing a courtroom battle can literally mean life or death for his client. It can also result in the loss of freedom, money, and familyand most tragically, his or her children. The Trial Warrior does not take this task lightly. He is always prepared to defend his clients life, liberty, and property like it is his own. He is constantly studying, learning, and practicing the art of trial warfare. He surrounds himself with fellow Trial Warriors. Like warriors of long ago, they share their war stories and rely on one another. They share in each other's glorious victories and learn from each other's defeats.

The Trial Warrior looks forward with eager anticipation to his next trial, for his next chance at victory, for there is no greater glory than to fight and win a trial when the deck was stacked against him in a trial he was supposed to lose. Such is the life of the Trial Warrior. He is fearless, while always endeavoring to be the best at his craft.

Sun Tzu said:

As circumstances are favorable, one should modify one's plans.

The Trial Warrior knows that while planning for trial is important, relying on a set plan can often lead to disaster. A well-known military quote beautifully illustrates this point: No plan survives contact with the enemy.

Before trial, the Trial Warrior carefully plans and prepares, but is always ready to modify plans to exploit a weakness or seize an opportunity. The Trial Warrior relishes when his opponent plans and rehearses their entire case, from the opening statement to the cross-examinations and closing. When the Trial Warrior ambushes his opponents and disrupts their plans, they often panic, and their case crumbles. Many lawyers will stick to their failing plan, although defeat is imminent. This is a weakness that can be exploited time and time again.