THE LAWYER AS WARRIOR-THE ART OF WAR IN COURT

It seems to be oximoronic on its face to claim a lawyer as warrior in a civilized trial which exists in order to fulfill peaceful resolution. Yet the truth be told, a courtroom is the site of true modern day battle. Lawyers come into the field of battle representing a person or entity and the winning side will take away or restore human freedom or large sums of money. It is deceitful to deny the fact that the very final essence of justice boils down to which lawyer had the better argument, thought best on his feet, and acted most aggressively creative for his side.

Literally, lives hang in the balance of the quality and performance of the lawyer in the battlefield. Never think that the process is peaceful-if by peaceful one means life is not affected or inextricably altered for the worst or better. It is violent and it is bloodless war.

Which is why Sun Tzu and the Art of War comes to mind as the best gauge of a trial lawyer's actions and tactics. Sun Tzu taught the warriors in ancient China how to prepare for victory in ways never before analyzed. His teaching is equally relevant to the modern battlefield of the courtroom.

Sun Tzu said there are 5 circumstances when victory may be predicted:"He who knows when he can fight and when he cannot will be victorious""He who understands how to use both large and small forces will be victorious""He whose ranks are united in purpose will be victorious""He who is prudent and lies in wait for an enemy who is not will be victorious""He whose generals are able and not interfered with by the sovereign will be victorious" ( Art of War)

How many lawyers are fooled by the facts, or their perception, and fail to make the proper judgment of the best way to proceed? How many lawyers fail to evaluate the opposition in all angles and confer with their clients about the best course? How many lawyers allow clients and other persons to interfere with the course of action their experience has taught them to take? The truth is that too many lawyers forget that they were hired precisely because of their specialized training and they abandon their role.

Sun Tzu said that when the "enemy's envoys speak in humble terms, but he continues his preparation, he will advance" " When their language is deceptive but the enemy pretentiously advances, he will retreat""When the envoy speaks in apologetic terms, he wishes a respite""When without a previous understanding the enemy asks for a truce, he is plotting"( The Art of War)

Regrettably, lawyers too often fail to gauge this warning by Sun Tzu. Deception and the enemy's forces are often misread and misunderstood. Strengths are ignored and weaknesses are unappreciated.

The trial is civilized-let there be no doubt. However the elements of combat and the consequences of life and death are very much a part of the civilized battle that is now called a trial.

Sun Tzu's teaching should be used by every lawyer that goes into court. It should also be remembered by our leaders that choose to go to war.
Labels: THE ART OF WAR IN COURT

Learn more about this author, Alex Kapetanakis.
Click here to send author comments or questions.

---

Add your voice

Know something about Lawyers: The courtroom warriors?
We want to hear your view. Write now!