How can we apply Sun Tzu’s Art of War, and the many volumes of commentary on the work, to criminal defense and trial practice?
One of the most important lessons that is woven throughout the Art of War is that it is best to win without fighting.
Criminal defense lawyers always want to impress their clients and potential clients with how tough they are – we are aggressive, we aren’t afraid to try a case, and we will fight for your rights. You see some version of that on almost every attorney’s website.
It may be true that an effective criminal defense attorney must be aggressive, unafraid, and willing to fight for their clients. But fighting a courtroom battle is only one way to achieve results for a client, and it is certainly the most dangerous place to be for any client.
Sun Tzu says that, whenever possible, it is best to win without fighting. How can a criminal defense lawyer win without fighting?
It is Best to Win Without Fighting
In war, then, let your great object be victory, not lengthy campaigns.
With few exceptions, a criminal defense lawyer’s job is to win their client’s case. But what does that mean?
When we think of “fighting for our client” or “winning our case,” we often imagine courtroom drama, a long and drawn-out brawl with a prosecutor that lasts for days or weeks and that results in a jury saying, “not guilty.”
But the point is not to win a trial – depending on the nature of the case and our client’s goals, “winning” could mean:
- Outright dismissal of the charges,
- A pretrial diversion program that results in dismissal of the charges,
- A reduced charge that saves our client from a prison sentence,
- A trial that ends in a sentence no greater than the prosecutor offered as a plea bargain, or
- An acquittal at trial.
A Criminal Trial is “Desperate Ground”
In Sun Tzu’s Art of War, there are nine types of ground, each of which requires different tactics. If we are in trial, we are on what is called “desperate ground,” hemmed in without the possibility of escape:
Ground on which we can only be saved from destruction by fighting without delay, is desperate ground… On desperate ground, fight.
We might win a glorious victory in battle, securing an acquittal and saving our client from prison. But, if we lose, our client loses everything.
This is why it is best to win without fighting, long before we get to a trial, whenever possible.
We begin trial preparation the day we are retained to represent our client – discovering the story of their case, investigating the facts and witnesses, gathering evidence from law enforcement, the prosecutor, our client, potential witnesses, and other sources, and researching the legal issues that may come up in our client’s case.
But, in most cases, we don’t immediately call up the prosecutor and say, “let’s have a trial!”
Dismissal of the Charges is Better than an Acquittal at Trial
Although we don’t mind the “glory” and publicity of winning a public trial in a criminal case, it should go without saying that a quiet victory with all charges dismissed is the best-case scenario for every client.
We have had clients who demanded a trial because they wanted their day in court – sometimes, incredibly, it is our job to patiently and carefully explain why getting our client’s case dismissed is better than risking their freedom at trial.
You don’t want your day in court in a criminal case – this is not a personal injury case where you are airing grievances. If you go to trial, it is because you have been forced there, and you have no other acceptable options.
Once we have a clear understanding of the facts of the case and what the evidence will look like at trial, we can begin the process of attempting to get our client’s case dismissed. If their case is dismissed, whether it is an outright dismissal or after completion of a pretrial diversion program, they have won.
Why would a prosecutor dismiss a criminal case?
- In the interest of justice – a prosecutor’s job is not to win their case; it is to seek justice.
- Because the charges are minor, the defendant is not a repeat offender, and pretrial diversion is appropriate.
- Because the facts are not what the police thought they were.
- Because law enforcement, or an alleged victim, got it wrong.
- Because the alleged victim wants the case dismissed.
- Because someone else is more culpable or the primary target.
- Because our client makes a better witness than defendant.
- Because the state’s witnesses are lying, and the jury will hear the proof of it.
- Because there is insufficient evidence for a prosecutor to convince a jury of guilt beyond any reasonable doubt.
- Because the prosecutor has come to believe that the defendant is not guilty after further investigation.
Without the danger of standing on desperate ground in a criminal trial, we have won.
Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.
A Reduction in Charges or Probationary Sentence is a Victory in Some Cases
In some cases, the best possible outcome is found somewhere between dismissal and all-out-war in a jury trial.
If the evidence of guilt is clear, our client’s goal might be to stay out of prison by paying a fine or getting a recommendation for a probationary sentence. When that is our client’s direction, our goal is still to get their case dismissed when possible.
If it is not possible to persuade the prosecutor to dismiss, and if the evidence of guilt is clear, we can let the prosecutor know that our client will accept a fine or probation, depending on the charges, avoiding a trial if the prosecutor agrees.
Thus the highest form of generalship is to balk the enemy’s plans; the next best is to prevent the junction of the enemy’s forces; the next in order is to attack the enemy’s army in the field; and the worst policy of all is to besiege walled cities.
Besieging a walled city – trying an “impossible case” – on desperate ground is the last option. Only when the case is not dismissed, and all options in between have been rejected despite our best efforts, do we stand on desperate ground, in the well of the courtroom, and fight a win-all or lose-all battle with the government.
Therefore the skillful leader subdues the enemy’s troops without any fighting; he captures their cities without laying siege to them; he overthrows their kingdom without lengthy operations in the field.
He will win who knows when to fight and when not to fight.
The most important lesson to learn in criminal defense practice may be knowing when to fight and when not to fight – in all cases, it is best to win without fighting.
Criminal Defense Lawyers in Columbia, SC and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.