chevron-down Created with Sketch Beta.
January 01, 2013

Sua Sponte A Judge Comments

A judge points out differences—and some similarities—between trial and war.

Hon. M. Margaret McKeown

Download a printable PDF of this article (membership required).

Whatever Sun Tzu may have been thinking in the sixth century B.C., he surely was not considering legal ethics and professionalism. And for good reason—the battlefields of war do not parallel the front lines of litigation. War is armed conflict; litigation is civilized dispute resolution, or at least it should be. But endless discovery disputes, years of Rambo tactics, and a blizzard of filings may cause some to disagree. Indeed, the war analogy has spawned “war rooms” for trial preparation, the divorce battle in the movie The War of the Roses, and briefs spouting “warring” legal arguments.

The authors of the article “Sun Tzu and the Art of Trial” persuasively demonstrate that a strategic plan is essential in both trial and warfare. To be sure, war is cloaked in a legal regime under various Geneva and Hague conventions. But these rules do not elevate ethical conduct over victory. The regime governing lawyers—the rules of professional conduct and extensive discovery rules—does exactly that. Any trial plan should be supported by three principles: fair disclosure, professionalism, and candor to the court.

Sun Tzu’s advice that “all warfare is based on deception,” designed to win at all costs, is anathema to the courts. Unfortunately, discovery disputes are a fertile battleground. These disputes are the bane of a trial judge’s existence and fare no better on appeal. Any trial strategy must account for the consequences of bloody discovery battles and their long-term implications. Deceit, hiding the ball, and unnecessary delay are tantamount to shooting yourself in the foot. Failure to curb these practices leads to another Sun Tzu truism: “The opportunity of defeating the enemy is provided by the enemy himself.” Diplomatic discovery is not an oxymoron. Sincere professionalism brings along respect from the court and may even pay off with an amicable resolution of the litigation.

Absent a negotiated resolution, there is a postscript for fans of Sun Tzu. Sun Tzu was well aware of the hazard of winning the battle but losing the war. So, too, should trial lawyers treat the trial as a precursor to appeal. The result of winning at trial but losing on appeal is, no matter how you put it, losing. The specter of appellate proceedings should serve as a shadow consideration throughout trial, and special thought should be given to these common pitfalls:

  • endeavoring to win every mini-skirmish during trial, critical or not, only to undermine the judgment on appeal;
  • pushing for the admission of unnecessary evidence that may unravel on appeal;
  • failing to make clear objections or leaving murky continuing objections in limbo by failing to tie up loose ends;
  • ignoring motions in limine that are never ruled on;
  • holding off-the-record conferences that are unreviewable;
  • pushing for legal rulings on close calls that may net a reversal;
  • offering surprise evidence without justification;
  • acquiescing in confusing jury instructions or verdict forms; and
  • fudging facts and not offering complete candor to the court.

Legal conflict resolution cannot live by trial strategy alone, nor solely by principles of war; rather, legal conflicts by their very nature require us to invoke, and ultimately rely on, the rules, principles, and higher values that we share as legal professionals.

Hon. M. Margaret McKeown

The author is a circuit judge on the Ninth Circuit Court of Appeals.