Applying military techniques to Advocacy: Boyd’s OODA loop in Cross Examination
Anthony S Marinac
As a new graduate in law, I recently had my first experience as an advocacy student. The group of 50 or so students each brought with them different perspectives and experiences –peer learning was half of the fun. As a serving Air Force officer, I did not expect my military training to offer any real insights.
However, when the focus turned to cross examination, I could not help assessing the task in combative terms. It is all too easy to see the witness as an adversary – a threat to be neutralised or eliminated, lest they damage my case. To my surprise, I found that my most familiar tactical model – Boyd’s OODA Loop – provides an effective means of determining, on the fly, the best tactical approach to cross examination as it develops.
I outlined my observation to the instructor, Hugh Selby, who encouraged me to put the idea to a wider audience.
What is the OODA Loop?
The OODA Loop is the brainchild of the late Colonel John Boyd, USAF. Boyd, a fighter pilot in Korea and later an engineer at the Pentagon, studied military theoreticians such as Sun Tzu and Von Clausewitz and battle tactics from the Carthaginians to the German Blitzkrieg. From his analysis, he developed the OODA loop. The loop was first adopted on a wide scale by the US Marine Corps as the basis for “maneuver warfare”, and it now underpins decision-making in most Western military forces.
The loop has four steps:
Observe: Using one’s own five senses plus intelligence from external sources, obtain as much information as possible about the current tactical environment.
Orient: The observed information must be fitted into what Boyd described as our framework of ‘genetic heritage, cultural traditions and previous experiences’. This is much broader than a simple rational analysis. Orientation requires the application of instinct, intuition and experience.
Decide: Observation plus orientation allows a decision-maker to determine the next tactical objective
Act: The action will, in concert with the adversary’s concurrent actions, result in a new situation which must be observed; and thus the loop continues.
For a wide range of illustrations that display the OODA cycle go to:
http://www.google.com.au/images?hl=en&q=ooda+loop&um=1&ie=UTF-8&source=univ&ei=_BVVTeidCIPZcfrnzJwM&sa=X&oi=image_result_group&ct=title&resnum=3&ved=0CDsQsAQwAg&biw=1280&bih=620
OODA in the Courtroom
During class, we watched video material of a poor cross examination in a domestic violence matter. The advocate put the multipart question, “You locked yourself in the room, didn’t you? He didn’t lock you in there at all.” The witness, voice rising in anger, exclaimed, “No, that’s not true!”
At this point I had a flash of inspiration and began applying the OODA Loop. What is the advocate’s best ‘next question’?
Let us start by observing. Naturally, we listen to the words of the testimony themselves, and compare them to the narrative we expected from the witness (and also to the narrative we are urging as true). What else could be observed? Did the witness break eye contact, and look to their lawyer for support? Did her tone of voice change? Was there a “fight, flight or freeze” reaction indicating duress? Did her body language change? Did she try to garner credibility by using unfamiliar formal or complex language? What was the judge’s reaction to our question and the witness’ answer? What was the reaction of opposing counsel? It can be seen that careful observation yields much richer information than the transcript will ever show.
Next, we orient. From the perspective of rational analysis, her testimony – “No, that’s not true!” is simple enough. In addition, let us bring experience and intuition to bear. Is the witness lying? [A better cross would have given us much better data to answer that question.] Are they becoming more, or less anxious with each passing question? Did the witness want me to ask that question, or did they groan internally when I did so? Is the witness becoming more verbose, more confident, or more reticent?
At this point, we have a far better appreciation of the tactical situation. Instead of simply having “No, that’s not true!” we have those words, with a rising tone of voice and a look to her counsel for support. The judge has suddenly increased their focus on the witness. Instinct [added to the responses to previous questions] tells us the witness is lying, and is becoming far more anxious because that was not a question they wanted us to ask.
Now we can make a decision. If we have exposed a vulnerability, do we capitalise on it? If so, now or later? If there is an inconsistency in their evidence, do we expose it, or lead them to widen it first? Alternatively, is the witness performing better than expected, and damaging our case?
Having decided in general terms what the next question should be, we might ask what the witness’ most likely, and most damaging responses are. If the most damaging response would be too harmful to our case, we should reconsider the question.
Finally, we act, considering both the phrasing and delivery of the question. This elicits a response, and the loop continues.
Selby commented to the class that this approach offers these benefits:
a. The advocate must engage with the target witness in active appreciation of both the content of the answer and the manner in which it is delivered;
b. The advocate will slow down in order to engage;
c. The decision maker will benefit from the advocate slowing down because the decision maker too gets the time to evaluate the answer; and,
d. The advocate will have enhanced control over the target witness.
Conclusion
The OODA Loop was devised by Boyd as a tactical model for adversarial situations. It seems to be as useful for the advocate in the Courtroom as it is for an infantry commander in Afghanistan. It allows for rapid, complex decision-making in a dynamic and unpredictable environment, characterised by an adversary whose actions and reactions can completely change the nature of the engagement. As a new, inexperienced advocate, the OODA Loop can help me to ensure that my line of questioning is neither stilted and inflexible, nor organic and unfocussed.
Those who wish to learn more about Boyd’s theories may wish to consider Hammond’s The Mind of War: John Boyd and American Security (2001)Smithsonian Institution Press, Washington, or Coram’s excellent biography Boyd: The Fighter Pilot Who Changed the Art of War (2002) Little, Brown & Co, New York.
[Note: The Author wishes to make it clear that this piece was written as a private academic exercise, and in no way represents the formal views of the Royal Australian Air Force or any associated entity.]
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