by: Tyler Flood
Appear Weak When You Are Strong
“When we are able to attack we must seem unable, when using our forces, we must seem inactive, when we are near we must appear far away, when we are far away we must make the opponent believe we are near. Humble words and increased preparations are signs that your opponent is about to advance. Violent language and driving forward as if to attack are signs that your opponent may retreat.”…Sun Tzu
Before Bobby Fischer became the World Champion Chess player in 1972 by beating Boris Spassky, Spassky was known as the Demon of Deception. He played some of the most exciting and surprising moves ever seen in chess. Many were designed to deceive his opponent and take advantages of opportunities that resulted from those deceptions.
The Sun Tzu book The Art of War teaches deception, preparation and skill on the battlefield. All warfare is based on deception, using surprise maneuvers and using your opponent’s psychological predispositions against him to gain tactical advantages.
In chess and martial arts, attack by deception, is the attack of the master. We must surprise our opponent and catch them in the moment of his helplessness.
This applies to trial. If you are prepared and know your case inside and out there will be at least one moment, one point in the case, one opportunity you can seize and take advantage of and surprise your opponent. However, if you are unprepared, opportunities may present themselves without you even being aware of them and you will not be able to exploit them.
When the time comes for your attack you should “look as boldly aggressive as a beast of prey—without becoming reckless—in order to bring pressure at once upon the adversary’s morale.”…Bruce Lee
Attack your opponent where he is unprepared and appear where you are not expected to attack.
If your opponent’s pleadings are open to attack, weigh the costs and benefits of bringing pretrial motions as opposed to using the deficiencies to your advantage in trial. Not all problems with your opponent’s pleadings require or deserve a “motion to fix” (otherwise known as a motion to quash). And you do not have to raise a motion to suppress by written pre-trial motion. You can raise a motion to suppress at any time during trial before the objectionable evidence is admitted. Roberts v. State, 545 S.W.2d 157 (Tex. Crim. App. 1977).
Ponder and deliberate before you make a move.
Sun Tzu teaches us:
“He will win who knows when to fight and not to fight.”
“He will win who prepared himself and waits to take the enemy unprepared.”
Trial is about opportunity. You must think about and plan for all possible outcomes, 99% of which will never occur. In over 140 jury trials in my 14 years of practice I have yet to have one go exactly as expected. There is almost always something that happens that I wasn’t expecting (but hoping for) and I was prepared for and ready to take advantage of the surprise opportunity. The successful trial lawyer is an opportunist. Be an opportunist.
There is no need to stick your chest out and talk loud and make a public show of confidence unless you want to tip your opponent off that you are not prepared. This usually is a signal that you are desperately trying to obtain a dismissal so you don’t have to go to trial. This is what I see many lawyers do who are either 1) dealing with a weak defense case or 2) who are scared to go to trial.
Being a trial lawyer is the only way to do this job correctly. The small number of lawyers setting their cases for trial in this county is embarrassing. I want to encourage all attorneys to go to trial more often and reap the rewards of taking advantage of opportunities that present themselves during trial. Opportunities that only present themselves when in trial. Opportunities that would never be realized if the attorney did not thoroughly prepare for trial and opportunities that would never be seen if the lawyer pleads out a case when there is no risk in trying it.
Much success in trial comes from out-preparing your opponent and finding issues to use and then waiting for the right opportunity and the right time to make use of those issues. Don’t spoil your chances by bragging or boasting beforehand about problem’s you have found with your opponent’s case. Telling your opponent about issues beforehand will cause you to lose the issues completely. The issues will be “fixed.”
What could be better than knowing your case inside and out and keeping quiet about it and luring your opponent into a false sense of confidence? You go to trial and then unleash your attack, taking your opponent by surprise.
To be successful in trial, why not prepare, prepare, prepare, then be quiet, appear unprepared and wait for your day of triumph. Don’t telegraph your level of confidence in the case.
If you study people you can pick up on so many cues that tell you everything you need to know. For example, during a break in trial the other day I was about to move to suppress the HGN (motion granted) and I asked the officer in the hallway a question about it before we went back on the record. His answer was evasive as he paused, looked accusingly at me and then stated, “I’m not supposed to be talking to you.” I explained that it was fine for him to talk to the attorneys just not other witness but then I said “Thank you though, you just answered my question for me.” He was weak and was trying to appear strong. If he was strong and had no problems with his HGN test he would have responded differently I think.
The idea of being quiet and confident goes both ways though. The prosecutors I am most concerned about, the ones who I worry the most about, are not the ones emailing me or calling me asking me if I am ready on a case. It’s the ones who I ask if they are ready and they simply give a one-word answer, “yes.” If they are bugging me asking why we aren’t pleading and if I am really going to be ready for trial then I know they are not wanting to go to trial on that case for some reason. You can learn a lot by paying attention to people’s actions.
So be prepared but don’t advertise it. If the State is definitely going to try your case then informing your opponent of all the work you have done in preparing for the trial and letting them know that you are very ready and very prepared will cause them to work harder and be even more prepared to fight you. If you know for sure it is a trial case then consider following the ancient lessons learned from warfare and from the game of chess. Act weak and unprepared and you can catch your opponent off guard. Feign weakness and your chances of success increase. This doesn’t necessarily apply to cases that you know are very weak for the state. In this situation you want them to see and hear how prepared you are so that you can increase your chances of a dismissal or a reduction.
Now go out there and fight with a winning strategy in place. Set your cases for trial and announce “Ready” on trial day!