A Trial Strategist's Template: Lessons from Musashi's Book of Five Rings and Sun Tzu's Art of War
Trail advocacy, trial strategy, strategy, legal profession, Sun Tzu, The Art of War, Musashi, Book of Five Rings, courts, legal profession, legal strategy
The trial strategist must learn to anticipate the unexpected, and be able to avoid being surprised. A strategist operates in an environment of challenge and stress requiring intuitive awareness, anticipation of an opponent’s path of action and instantaneous and even anticipatory perception decision and action. The challenge is that many people are able to function well in intense situations as long as the rhythms and conditions are predictable and obvious. But the problem for the trial lawyer is that much of strategy involves reacting to surprise. This requires neutralizing or reversing the effects of altered conditions by which the opponent seeks to throw you off balance and gain an advantage when you are startled and hesitant. The ability to anticipate, perceive and act under stress is central to trial strategy in action. It is not only defensive in nature. The strategist also needs to be able to impose stresses on the adversary and to seize advantage when openings are created. Conversely, the successful trial strategist must prepare for surprises and be adaptable in the midst of stress. All strategists develop the ability to perceive the future as part of the present. Understanding people, both as individuals and as members of groups, is one of the most critical elements of trial strategy. The best lawyer is someone who can see deeply into the human significance of the mass of evidence that has been submitted and pull it together in compelling and persuasive ways. When you know humans, what they value, how they act and why, and are able to function intuitively then you can see past other’s masks and illusions and perceive true intent. When you have studied in the way required of the strategist you can perceive the structure, rhythm and timing of the strategic context. Things that confuse others will be clear to you.
David R. Barnhizer, A Trial Strategist's Template: Lessons from Musashi's Book of Five Rings and Sun Tzu's Art of War, SSRN Cleveland-Marshall Legal Studies Paper No. 10-198 (October 29, 2010)