Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.
—Sun Tzu
The key to victory in trial is to prepare and plan a winning strategy before trial, not after trial has begun. Keep these seven effective strategies for success in mind before your next battle.
1. Keep your opponent off balance
Pretend inferiority and encourage his arrogance. If you know the enemy and know yourself, you need not fear the results of a hundred battles.
—Sun Tzu
Get to know your opponent. Study your opponent and his moves before you ever sit across from him in battle. Ask others for information about him and about experiences they have had with him. Identify his strengths and weaknesses. Try to determine his level of honor and integrity. On the other hand, don’t ever let your opponent learn about you. Keep him in the dark about who you are and what your plan is. The more you talk, the more information you give your opponent about your plans and your personality, temperament, and preparedness. Don’t give your opponent a chance to figure you out. Keep him guessing. Appear mysterious, aloof, or even a bit crazy and unpredictable.
2. Start strong—have an opening strategy
I first heard from Robert Hirschhorn that you should never forego an opening statement. It should be a strategic storytelling event. If your opponent objects to you telling your story, stop . . . pause . . . say, “The evidence will show,” and go right back to where you were in your story. Don’t give away the whole movie in your trailer, give them just enough to pique their curiosity. Whet their appetite but stop short of showing them the whole enchilada.
3. Don’t capture just to capture
Taking pieces just to take pieces may not advance your strategy in chess. It might actually hurt you. You may be helping your opponent by taking easy pieces while he advances into a more strategic position earning more points. In trial, don’t object just to object. You should be trying enough cases to be able to begin to predict with some accuracy what objections will be sustained or overruled by what judges. A good rule of thumb is to only object when the question or answer will hurt your case. If it doesn’t hurt, why object? It only disrupts the trial, draws possibly unwanted attention from the jury, and if you are overruled, then you lose points. Another good reason to object selectively is because what goes around may come around. If your opposing counsel is leading a ton on direct or making lots of speaking objections (that don’t hurt you), then you will probably be given the same latitude from the Court when it’s your turn. Use it to your advantage.
4. Attack where weak
The opportunity to secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.
—Sun Tzu
In chess, if your opponent has a weak side, attack it. If he has an underdeveloped middle board, exploit it. In trial, attack the issues that are weakest for the State. Don’t use a shotgun approach by attacking everything in sight. Focus on the several good issues you have spotted that are weak for the State and only attack those. Use a focused approach to exploit the weak parts of the State’s case.
5. Keep the pressure applied
When you’ve got your opponent on the ropes, keep him there. If you have gained a powerful position, don’t let off the pressure. If the king or queen is being attacked from multiple directions, one wrong move lets him off the hook and reverses all your good work. With witnesses in trial, you must continually work to cut off all escape routes. Look for and anticipate all the outs your opponent may have. Keep the pressure on them so they can’t get away. Lock them down to their favorable testimony by repeating the testimony in the form of your next three questions.
6. Close it out strong—have a closing strategy
Even the best opening strategy and midgame attack is useless without a strong closing strategy. If you can’t close it out, you lose. You must not let all your good moves go to waste by not being able to pin the king! Your closing statement is your chance to shine and checkmate your opposing counsel. The object of closing is to take all the points you made in trial, bring them together, and deliver a powerful blow to the State by arguing that you have presented so much reasonable doubt that the only decision is Not Guilty. I’m a firm believer in gut feelings. I tell jurors in all my closings that if your first reaction, or your gut feeling, is that you have some reasonable doubt, then you are done and your decision is easy . . . Not Guilty. Tell jurors that if they start deliberations with a gut feeling that the case wasn’t proved, they are not to go searching for ways to explain away the reasonable doubt. I challenge them to stand strong in their beliefs to not let anybody change their mind—no matter what the foreperson thinks, no matter what time it is, no matter how uncomfortable deliberations become . . . Be strong and never let anybody change your mind for you if you feel there is reasonable doubt.
7. Consider offering a draw
He who knows when he can fight and when he cannot, will be victorious.
—Sun Tzu
Sometimes the best outcome, if you are losing, is a draw. Offer it and take it gladly. As a general rule, if you go to trial and your client is not convicted, then you won! In trial, if you feel things did not go your way and the jury is hung . . . ask for a mistrial. It may be a big victory under the circumstances. This is not a general, across-the-board rule, though. If you feel the jury is on your side and there is only a minority holding out . . . consider foregoing the draw. If you are confident the vote is in your favor, do not ask for a mistrial.
Remember, good things happen when you announce ready for trial. Be a trial lawyer. Go to trial.
