The 'Trial Warrior': Applying Sun Tzu's The Art of War to Trial Advocacy

Antonin I. Pribetic, Steinberg Morton Hope & Israel LLP

Article comments

To be cited as: (2008) 45 Alta. L. Rev. 1017-1035.

Abstract

This paper takes an interdisciplinary approach to 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).Applying Jungian analysis, the following three (3) conceptual models and corresponding lawyer archetypes emerge:

1.the client-centric model (e.g. the “the “Warrior” / the “zealous advocate”);

2.the justice-centric model (e.g. the “Lover/Medial”/ the “ethical professional”); and

3.the science-centric model (e.g. the “Sovereign” or the “Magician/Trickster”/ the “knowledge technocrat”).

The paper then considers whether strategic functionalism can integrate the client-centric, justice-centric and science-centric conceptual models into a coherent, unified Trial Advocacy paradigm. The 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: for the “zealous advocate”, The Art of War provides a blueprint for developing and executing a comprehensive client-focused litigation strategy; for the “ethical professional”, the Taoist philosophy permeates the text, raising awareness of the need to avoid conflict, yet illuminating the balance of achieving victory without destroying the enemy; and for the “knowledge technocrat”, the rationalist minimalist approach places greater emphasis on organizational strength over individual talents and skills, particularly useful in the context of complex litigation management.