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Friday, January 4, 2013

Advocacy, Strategy and Fairness: A.S. Dreier Responds to Selby's Review of His Book

We received the following from A.S. Dreier, author of Strategy, Planning & Litigating to Win: Orchestrating Trial Outcomes with Systems Theory, Psychology, Military Science and Utility Theory, in response to Hugh Selby's review of his book published on this blog in December.  

I haven't read the book yet, but after reading Hugh's review and Andrew's response, my interest is piqued. It is now at the top of my reading list.

I think the debate between Selby and Dreier raises some valid and fascinating issues about advocacy, ethics and teaching. Please comment and join the debate!

Advocacy, Strategy and Fairness

A.S. Dreier

Since publishing “Strategy, Planning & Litigating to Win,” two advocacy instructors have separately asserted that the techniques of Strategy described are “unfair.”  I understand the concern—the methodology allows an attorney to deny their opposing counsel the ability respond effectively to unfolding events.  However, the claim of unfairness simply highlights a longstanding unfairness in the trial system.  Sophisticated (i.e. well-educated, intelligent, experienced) attorneys have always been able to dominate ill-prepared or less-intelligent adversaries.  The inclusion of the tools of Strategy simply resets the bar for “well-educated” and “well-prepareto include those with an understanding of Strategy.  The playing field will return to the status quo ante when formal tools of Strategy are incorporated in the education of trial advocates; until then, those who know Strategy will have an edge over the larger pool of trial advocates who do not.

The real problem, though, the issue highlighted by the claims of unfairness with regard to Strategy, is the fact – highlighted by the header to this blog, that the advocates skill affects (and sometimes wholly determines) the outcome of trial by court.

Modern trials differ from medieval trial by combat (where the litigants or their representatives dueled physically, allowing God to grant victory to whoever had the just case) in that rather than relying upon combat prowess or divine intervention it calls upon jurors to weigh relevant evidence. Evidence, however, may be (and often is) unclear and subject to multiple interpretations.

Advocacy leverages the need for interpretation in a variety of ways. For example, we develop a theme and theory in order to provide a favorable context to the evidence. We use primacy and recency, preempt our opponents arguments and counter-arguments, shift emphasis to favorable facts and away from unfavorable ones, extract from witnesses information that advances our preferred interpretation of events, and use techniques of persuasion to influence the way jurors perceive.

If we possess but do not use these skills, are we in breach of our ethical duty to our client?  If I am an experienced, well-educated advocate capable of crafting an argument that glosses past its flaws in a way that I am certain the unsophisticated, in-experienced (i.e. slow-witted) opposing counsel is likely to miss and so have no effective response to, am I being “unfair,” or am I serving my client?  Am I committing malpractice if I tell opposing counsel or the court about the weaknesses of my client’s case?

So, while trial by court gives some weight to the facts, we still have the trial by combat issue of having outcomes altered or even determined by skill rather than objective concepts of justice.
The techniques of formal Strategy—leveraging the OODA Loop (capitalizing on information the other party does not possess due to privilege or work product, shaping the context in which they receive and assess information, channeling the decisions they make, or taking actions that preempt or disrupt opponent's actions), using economic game theory to shape situations, and drawing upon tools from other strategic schools of thought—simply adds an additional layer of skills that opponents will either be capable of confronting or not.  “Strategy, Planning & Litigating to Win” points out that the techniques of Strategy are sometimes already intuited and used by practicing counsel, so any unfairness in them already exists in the system.  SP&LTW simply puts the techniques within the reach of all attorneys, and clarifies when they are or are not advisable. 

The "Paradox of Skill" states that greater levels of skill among the participants in a competition increases the degree to which “luck” affects the outcome. In the attorneys' case, "luck" may be having the facts and law on your side--in short, the more equally skilled the attorneys, the more likely the trial has a “just” outcome. So, once all attorneys can bring to bear the techniques of Strategy, the system will tend more toward justice.  Since these are techniques are already in use by some intuitively strategic counsel, by publicizing them, my book actually levels the playing field against the intuitively gifted rather than creating unfairness.

To ensure fairness, we could either require all attorneys remain equally ignorant of Advocacy and Strategy, or we can try to make all counsel competent in Advocacy and Strategy while ensuring they follow the rules of ethics (rules which allow persuasion, create disparity in the information available (privilege and work product—work product that includes the attorneys theme and theory).

I hope some of you post thoughts on this topic—Should we stop teaching advocacy? Should the Bar require trial attorneys be proficient in Advocacy and Strategy before entering the well? Should we say that some currently ethical techniques are unethical? How do we deal with the unfairness created by an adversarial system that allows outcomes to be swayed by attorneys of unequal skill?

4 comments:

  1. Prosecutors act on behalf of the State to bring before a decision maker that evidence which they assert proves beyond a reasonable doubt that the accused is guilty. If their conduct of the case is less than exemplary then the State is tarred with their shortcomings.

    Because of the disparity in power between the State and the individual we have allowed the defence various ‘protections’, such as ‘the right to silence’, receipt of prosecution witness statements prior to trial, non-disclosure of their prior criminal record to the decision maker, and even ‘ a right to counsel’. The content and application of each of these varies from one jurisdiction to another.

    However, as Lt. Col Dreier points out, the disparity in advocacy skill between the two sides may be the deciding factor as to which side wins, and which loses. That advocacy skill includes strategic case planning capacity and tactical delivery by way of opening, closing, and questioning – all of that within mastery of the procedural and evidential requirements.

    Those ‘protections’ and ‘advocacy skills’ all play out under a fundamental belief that they lead to ‘just outcomes’ – that objective, non corrupted, decision makers will reach a decision properly open to them on the evidence (not unsupported hypotheses, and not misled by a failure to adduce evidence that is there, as to which see my review of the Lt. Colonel’s book).

    I enthusiastically endorse a strategic approach. I decry such an approach when it replaces ‘the interests of justice’ with ‘I must win’.

    ‘Prosecuting to win’ and ‘prosecuting to serve the just interests of the State’ are not one and the same. A prosecutorial focus upon ‘winning’ distorts a number of relationships: the prosecutor will not neutrally evaluate the whole of the evidence when dealing with investigators; the trial judge will not be able to ‘trust’ the prosecutor’s independence from the investigators; the defence counsel would be wise to distrust the prosecutor from the start – thereby ensuring that trials take longer.

    What’s more, in those cases where the prosecutor realises during the trial that there is a problem with the State’s case, then the ‘I’m here to win’ prosecutor will not alert either the court or the opponent to the problem. That’s when we might just as well go back to ‘trial by combat’.

    Addendum: The issues raised in the Selby -Dreier debate are relevant to our trial advocacy students – both now and in their future advocate careers. Hence the issues warrant your comment. My thanks to Andrew Dreier for 'bringing this on'.

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  2. In the past couple of years, I've gotten involved with the National Innocence Network. Sadly, the problem Hugh points out--the vast gulf between "prosecuting to serve the just interests of the State" and "prosecuting to win"--is all-too-pervasive, not only in the United States but also in the rest of the world. Unfortunately, there are many documented cases where prosecutors with more talent and better resources, choose winning above justice. The prospect of an innocent person going to jail as a result of a complete miscarriage of justice at both the trial and appellate level is not just hypothetical: it's a tragic reality for hundreds of people.

    I've often wondered whether better defense resources, and more skill on the part of defense attorneys, would level the playing field somewhat. For defendants with the resources to hire top talent, it seems to make a difference.

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  3. Based on the comments above, it appears the immediate concern with superior skill shaping a trial's result is when it is a prosecutor who is superior. I will confine this response to prosecutorial conduct, though I do not see it any less of an issue elsewhere in the criminal and civil courts.

    The case study in the book, however, is not an example of prioritizing winning over justice; it is an example of presenting the victims’ accounts zealously and convincingly. There was no evidence of fabrication or overreaching.

    Typical of most sexual predators, the defendant in the case study had habitually targeted isolated, vulnerable females creating he-said/she-said situations that maximized his chance of escaping justice. The victims’ stories were independently credible and the prosecutor, was responsible for representing their interests.

    The victim in the central attempted rape stated from first report through her appearance on the witness stand that she had locked her front door—she said this even when being harangued by the defense counsel prior to the trial, being made to feel unintelligent or deceitful because there was no apparent explanation for how the defendant could have entered her house if she had *really* locked her door.

    Yet, the evidence showed defendant had the opportunity to unlock the victim’s back door before the assault, and if one presumes the victim was not a liar, there is no other logical explanation for how defendant came to be in the victim’s bedroom. The government’s hypothesis is supported by opportunity and logic.

    Now, when there are fingerprints on the murder weapon, we do not know when they were made or if they are in fact related to the murder, but it’s fair to argue to the court that they indicate who the murderer is. Likewise, motive and opportunity do not prove a crime, but they are arguable evidence. Circumstantial evidence is evidence. No one saw O.J. stab Nicole —there was not even evidence to confirm he was in the same state- yet they were justified in arguing he committed the murder (even if the prosecutors were sufficiently competent in neither Advocacy nor Strategy to carry that out).

    There is no evidence the prosecutor prioritized winning above justice. His conduct was ethical, and if it is viewed as unfair, it is only unfair in that the defense (ignorantly) relied on the victim’s inability to deduce how defendant got into her bedroom--Just as the defense failed to have a witness offer rebuttal to another of the victim's statements (a point laid at the prosecutor's feet in the initial review).

    What we see is simply a disparity in skill, not an example of prioritizing winning over justice.

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  4. I am not sure I understand the fact pattern as well as I should before offering my comments. Did the victim identify the defendant as the person who attacked her? I am also not sure of the status of the observer witness. Which side called him? Did he testify regarding the assault or the harrasment? What was not disclosed concerning him? I look forward to reading your book.

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