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Saturday, December 22, 2012

Strategy,Planning and Litigating to Win: A Dismal Sign of Our Times

Book Review of ‘Strategy, Planning and Litigating to Win’ , a monograph by Lt. Col. Andrew S. Dreier of the US Army JAG Corps. (published as an Ebook on Amazon Kindle, 2012, 87 pages plus some appendices.)

Trial and appellate case planning is important, but it receives scant attention in many ‘advocacy textbooks’ which emphasise the tactical processes of questioning and submissions rather than the underlying strategy from which the questioning and submissions should flow. To the extent that there is a strategic case plan the most common approach is linear and, as often as not, it assumes a static, even comatose opponent.

Effective strategy, by contrast, anticipates what will happen; it develops an integrated pro-active plan of how to handle the law, the facts, evidential and procedural requirements, along with environmental factors such as prevalent prejudice; and, it enables the advocate to respond artfully to the unexpected.

Hence the title, ‘Strategy, Planning and Litigating to Win’ is exciting. The concept is attractive. It is made even more so by the sub title promise of reaching winning outcomes by applying systems theory, psychology, military science and utility theory. The organisation and choice of topics is also attractive: what a formal strategy can do; manoeuvre philosophy (by way of the OODA loop); concept of friction (a force that interferes with progress through the loop); the nature of the loop; and how to affect the actions of the opponent.

If this book could deliver on its title and its topics then it would be a very good book.

The early explanation is interesting: First introduce the manoeuvre theory of cycling through ‘observe, orient, decide, and do(act), repeat the sequence of OODA’ . Next, within that cycle apply the ‘line of operations’ concepts (apparently used in counterinsurgency operations). These concepts include comprehensive planning, capacity to understand the opponent and be reactive, and keeping the eye on the main game.

But, wait a minute, is that the intended order for effective planning? Should it be the other way around: ie. first, line of operations attention to the whole and then apply the cycle to the implementation? As a reader I’m confused when I should be nodding agreement. The author reports on surveys of user groups who, apparently, were grateful for the insights. That, however, doesn’t validate the method. It merely confirms that something is a lot better than nothing for trial planning.

The author correctly points out that any strategic success needs tactical skill to be successful. Sensibly the author then introduces a case study. Sadly it’s a very bad one and reveals a lamentable approach to prosecuting.

The prosecution case –endorsed by the author - is that the defendant, a visitor to the (intended) neighbour victim’s home, deliberately left a back door unlocked so that he could return with the intention of raping the victim. He entered, locked the back door, then went to her bed to do evil. She awoke, she recognized him and screamed, he fled through the front door – one that she claimed to have locked before going to bed.

The defence case is that the accused went to the front door to return some food, found the door open, heard the woman screaming, and went to her room – a story that is innocent enough.

Let's be quite clear: there was no evidence – in this book - that the accused ever went to the back door, let alone that he unlocked it and relocked it. There’s no sighting of him at the back door, no fingerprint or other forensic evidence to tie him to the back door. Nevertheless, the prosecutor has chosen to present this bald, unsupported hypothesis to the jury as though it was supported by evidence. Bad, very bad. So bad that the book and its author never recover.

The pity of it is that, apparently, the defence failed to move immediately for a mistrial when this unsupported hypothesis was introduced. Given that this book draws upon military strategy to which the laws of war apply, I can sum up the problem by drawing the parallel that a prosecutor’s strategy is subject to the ethical requirement that there be good evidence, not just speculation, to back up an hypothesis.

It gets worse: ‘Maneuver in litigation does not attack arguments or evidence conventionally; it targets an opponent’s ability to function’. It would follow from this assertion that ‘playing dirty’ is OK, that the pursuit of a just outcome is mere prattle.

Later in the book we readers learn that the defendant was also being tried on unrelated acts of sexual harassment in the workplace that had no connection in time, place, or even ‘modus operandi’ with the alleged assault upon his neighbour. Just how that was allowed to happen is not explained – but it shouldn’t have. The author writes, “Unfortunately for the prosecutor, X (an observer) was a highly effective witness (apparently based upon his pre-trial interview and statement)…” [in asserting that he would have seen the defendant if the defendant has gone into an alleged victim’s space and he was insistent that he did not see the defendant]. Hum, too much concern yet again with winning, and too little with understanding the prosecutor’s duty to present a case fairly and fully: ‘unfortunate’ witness for a ‘win no matter what’ prosecutor, but a thankfully observant witness from the defence perspective.

That matters have gone awry is amply demonstrated by the prosecutor deliberately omitting that part of the victim’s witness statement which dealt with the defendant’s alleged entry into her room. Apparently that then allowed the prosecutor to ‘fail’ to ask the observer about ‘not seeing the defendant go into the room’.

The game is given away when the author states, “to achieve a stiff sentence, the lines of effort (that are parts within a Line of Operations) were co-ordinated for presentation to the jury in a way that would build a picture of a dangerous escalation in defendant’s sexual aggression”. Never mind the evidence, the spin is everything.

Moreover, “ Because allowing the [observer] to contradict the [alleged victim] hurt [the prosecutor’s main aim], the prosecutor did not hesitate in his decision to abandon [the alleged victim’s] most serious allegation”. Scandalous.

This is not to say that this text is devoid of ‘ethical content’. It gets a mention in chapter 5 – in a discussion of how to stymie your opponent.

I read this book twice, the first time because I had high hopes for it, the second time because I was professionally affronted by the lack of ‘lets play fair’. But I do think that many lawyers should read this book, not for the undoubtedly positive reasons that lead the author to labour so long and hard to write it, but because it demonstrates how quickly one can slide excitedly down the slippery, oh so dangerous slope when the wrong ends justify the means.

--Hugh Selby

1 comment:

  1. A very thoughtful review, but I'm unclear on the demands being imposed upon the prosecutor:

    Since the case study points out that there was no explanation for how the front door came to be open (and the defense had made an issue of attacking the victim's claim she locked it), the explanation that the accused came in through the back door instead of the front, combined with the evidence of his opportunity to have unlocked the door would seem to be a valid theory. The explanation was not contradicted by any evidence, and in fact was the most logical explanation of the evidence present. Where is the requirement that every statement of explanation offered in argument must be directly supported by further evidence that it is the correct explanation?

    On a second point raised, I'm unsure of what caused the confusion, but the book does state that the OODA Loop is a way of thinking about the dynamic between the advocates (a philosphy, specifically "maneuver philosophy"), whereas the Line of Operations is a way to map out a hard copy plan, so the advocate has a piece of paper laying out how the different events link together to support each other.

    The issue of the prosecutor dropping the more serious allegation that conflicted with his presentation raises the broader issue of "is it fair to use techniques of advocacy that your opponent is too slow-witted to effectively refute. I sent some thoughts on that which have been posted to the blog, and I truely welcome others' thougts on it.

    As to why the defense did not sever the harassment charges from the assault, I have heard argument that the situation would not meet the standard, and that the defendant may not have wanted to go through multiple trials. In the end though, only the accused and his counsel know--you cannot blame the case study.