The genesis of this blog is an article I published last year entitled: “The Trial Warrior: Applying Sun Tzu’s The Art of War to Trial Advocacy” (2008) 45 Alta. L. Rev. 1017-1035.
Here is an excerpt:
The fact the adversarial legal system, as a bulwark of popular culture, developed from the medieval antecedents of trial by ordeal, trial by fire, and trial by combat, is well known, but it also resonates as a strong, militaristic metaphor for the modern civil trial.
Moreover, jurisprudence (i.e. the “philosophy of law”), continues to adapt or integrate existing or new theoretical or conceptual models from other disciplines, such as psychology, international relations, political economy, economics, and the humanities. An interdisciplinary approach thus lends heuristic value through an analysis of the Western (common law) adversarial system based upon the following theory of “strategic functionalism”: the form (tactics based upon procedural and evidentiary rules) is a function of the content (strategy based upon legal principles and policies and client-based remedies). The following three factors underscore the importance of formulating and deploying an effective trial advocacy strategy based upon strategic functionalism:
the general decline of jury trials in Canada, thereby heightening the importance of a trial lawyer’s oral and written advocacy skills in trials by judge alone;
the increasing scientific and technical complexity of legal and evidentiary issues, highlighted by the reliance on expert opinion evidence;
the private and public cost-driven and systemic (i.e. mandatory mediation/ADR and case management) biases militating towards settlement, but not mitigating against strategy-based negotiation.
While many Trial Advocacy writers approach the subject matter as an “art” or as both an “art and science”, they tend to focus on descriptive or ascriptive, rather than prescriptive, categories.
As a descriptive category, Trial Advocacy combines behavioral and role-specific characteristics to describe what the trial lawyer is within an adversarial system based upon application of procedures (rules) to achieve client goals (remedies).
As an ascriptive category, Trial Advocacy is an element of the legal system’s symbolic culture, the combination of perceived social norms, mores, ideas and beliefs about how a trial lawyer acts and identifies a trial advocate’s attributes.
As a prescriptive category, Trial Advocacy is the normative analysis of why a trial lawyer should act a certain way, which implies the use of an archetype: generally understood as “a generic, idealized model of a person, object or concept from which similar instances are derived, copied, patterned or emulated.” As Carl Jung, the founder of analytical psychology noted archetypes exist within the deeper recesses of individual and collective human psyches. It is primordial and universal, residing in the collective unconscious. Archetypes carry a full range of positive and negative potential, but do not solely manifest themselves through intellect, but rather shape and define our attitudes through art, literature, myths, symbols, dreams and story-telling.
Applying Jungian analysis, the following three (3) conceptual models and corresponding lawyer archetypes emerge:
the client-centric model (e.g. the “the “Warrior” / the “zealous advocate”);
the justice-centric model (e.g. the “Lover/Medial”/ the “ethical professional”); and
the science-centric model (e.g. the “Sovereign” or the “Magician/Trickster”/ the “knowledge technocrat”).
…one may argue that a “zealous advocate” need not literally act as a “zealot”: i.e. a fervent and even militant proponent of something. Rather, the “ethical professional” archetype tempers the “(over) zealous advocate”, insofar as any improper conduct is restrained by the concept of fiduciary law and various codes of professional ethics.
Additionally, the “knowledge technocrat” archetype has potential application, particularly in light of the emergent issues in electronic discovery/document management, as well as growing reliance on the Internet, E-mail, Personal Digital Assistants (PDA’s) etc. However, while a computer programmer may be able to create a legal software program to conduct legal research or even rudimentary legal analysis (presuming correct algorithms are inputted); there is no substitute for advocacy skills and applied legal reasoning honed by years of courtroom experience and collegial mentoring.
The objective here is to determine whether strategic functionalism can integrate the client-centric, justice-centric and science-centric conceptual models into a coherent, unified Trial Advocacy paradigm. My thesis is that Sun Tzu’s The Art of War serves this purpose well. The key element is that one can easily transpose the Taoist philosophy and military strategy and tactics in Sun Tzu’s The Art of War to Trial Advocacy, irrespective of which conceptual model and corresponding lawyer archetype one identifies with. Most trial lawyers will likely identify themselves as a combination of two or all three conceptual models offered; however, the term “Trial Warrior” has a degree of verisimilitude and will be used to analyze Sun Tzu’s The Art of War.
Applying Sun Tzu’s Military Theory and Taoist Philosophy to Trial Advocacy
If, as the great military theorist, von Clausewitz observed, “War is a mere continuation of policy by other means”, then by analogy, “A trial is a mere continuation of social conflict by other means”. Unquestionably, von Clausewitz had a major impact on Western military strategy. However, as Sir Basil Henry Liddell Hart, the noted British military strategist and historian, notes in his Foreword to a 1963 edition of Sun Tzu’s The Art of War:
Civilization might have been spared much of the damage suffered in the world wars of this century if the influence of Clausewitz’s monumental tomes On War, which molded European military thought in the era preceding the First World War, had been blended with and balanced by a knowledge of Sun Tzu’s exposition on `The Art of War’. Sun Tzu’s realism and moderation form a contrast to Clausewitz’s tendency to emphasize the logical ideal and `the absolute’ which his disciples caught on to in developing the theory and practice of `total war’ beyond all bounds of sense.
In brief, Sun Tzu was the best short introduction to the study of warfare, and no less valuable for constant reference in extending study of the subject.
The Art of War (Sunzi bingfa/Sun-tzu ping-fa), written during the fifth to the third century B.C.E. in the Warring States period of ancient China, has been attributed to a legendary Chinese philosopher-warrior named Sun Tzu.
As one of the most famous treatises on military strategy, The Art of War has had a profound influence on Eastern and Western military planning. It has also gained currency within Japanese and Western corporate culture, particularly in the context of business negotiation tactics. The Art of War has also been the subject of various law books and legal articles on the trial process, including negotiation tactics and trial strategy.
While an authoritative treatise on military strategies and tactics, it is not exclusively a book on military theory. The teachings of Taoism, most notably the I Ching (The Book of Changes) and the Tao-te Ching (The Way and Its Power) imbue The Art of War: “Its aim is invincibility, victory without battle, and unassailable strength through understanding of physics, politics, and psychology of conflict.” It adopts a rationalist/minimalist approach to conflict resolution and offers insight on how understanding the psychology of conflict leads to its resolution or, ideally, to its avoidance altogether. [citations omitted]