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?