A.J. Rohe III
THE ART OF WAR
“So, it is said that if you know your enemies and you know yourself, you will not be put at risk even in a hundred battles. If you know yourself, but not your opponent, you may win or may lose. If you know neither yourself nor your enemy, you will always endanger yourself.”
“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.”
The Art of War is an ancient Chinese military treatise dating back to the late sixth century BC. Ancient Chinese military strategist and military general, Sun Tzu, composed this book of 13 chapters. Each chapter addresses a different aspect of warfare and how it applies to military tactics. Much of the text is about how to fight wars without actually having to battle. It gives insight on how to outsmart one’s opponent so that physical battle is never necessary. The book was first translated into English in 1910 by Lionel Giles and has had a great influence on both Eastern and Western military thinking, business tactics, legal strategy, etc.
Applying the 13 chapters to legal strategy:
- Laying Plans: This Chapter highlights the importance of creating a strategy at the beginning. It addresses the five fundamental factors that the strategy should be based upon: the moral law, heaven and earth, the commander, method, and discipline. Below is an analogy as to how these principles can be used in legal practice.
Moral Law: Establishing the client’s ultimate goal; determining how and why the arguments will lead the trier of fact to a fair and reasonable result.
Heaven and Earth: Analyzing the opposing party and their attorney’s experience level as well as the support staff they have available to them.
The Commander: Analyzing the opposing counsel, knowing their temperament, and how backed up the assigned judges’ dockets are.
Method and Discipline: Getting all the facts and creating structure and organization.
“All warfare is based on deception.”
“Hence, when able to attack, we must seem unable; when using our forces, we must seem inactive.”
- The Art of War is the art of deception, preparation, and skillful knowledge. Early preparation is essential for recognizing weaknesses and strengths for both sides. You and your client have to establish the ultimate goal for the case at the beginning. The lawyer can then design the actions to take in order to achieve that goal.
- Waging War: Understanding the economy of war and how success requires winning decisive engagements quickly.
“In war, then, let your great object be victory, not lengthy campaigns.”
“There is no instance of a country having benefitted from prolonged warfare.”
- It is important to utilize the cost/benefit analysis. Some lawyers make it their practice to engage in tactics which are designed to prolong litigation and impose expenses on their opponents. What such attorneys fail to understand is that a lot of their tactics are needless and impact the finances of their client as well.
III. Attack by Stratagem: This chapter defines the source of strength as unity, not size, and discusses the five factors that are needed to succeed in war which include attack, strategy, alliances, army and cities. Having to fully understand and carefully think through strategies one intends to apply to bring about victory as quickly as possible.
“Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists of breaking the enemy’s resistance without fighting.”
“He will win who knows when to fight and when not to fight.”
“Hence the saying: If you know the enemy and know yourself, you need not fear the result of a hundred battles.”
“If you know neither the enemy nor yourself, you will succumb in every battle.”
- One maintains control by knowledge of not only the facts but the law and having insights on when (and when not) to use tactics to strategic advantage. It is ideal to get the opponent to settle before having to go to trial.
- Tactical Dispositions: This chapter teaches the importance of recognizing strategic opportunities and teaches not to create opportunities for the enemy. Each preliminary confrontation contributes towards the attainment of the overall goal. It is important to know when to be on offense and when to be on defense. Regardless, one should always be creating tactics that persuade the enemy to abandon their struggle and declare peace.
“To secure ourselves against defeat lies in your own hands, but the opportunity of defeating the enemy is provided by the enemy himself.”
“Hence the skillful fighter puts himself into a position which makes defeat impossible, and does not miss the moment for defeating the enemy.”
“What the ancients called a clever fighter is one who not only wins, but excels in winning with ease.”
- In a deposition, an attorney can bring up over 100 points, knowing they will focus on perhaps 10 of them at trial. This creates panic for the other side and instead of showing them your hand, they are forced to prepare a defense for all 100 points without the ability to focus in on the 10 or so you plan to actually use.
- Use of Energy: Addressing the importance of having a united and reliable army.
“The clever combatant looks to the effect of combined energy, and does not require too much from individuals. Hence his ability to pick out the right men and utilize combined energy.”
- Organization starts with the assembly of a litigation team which requires training and collaboration. This allows you to rely on a group dynamic, rather than relying only upon individual qualities and talents.
- Weak Points and Strong: This chapter teaches that the opportunities that come from the openings in the environment caused by the relative weaknesses of the enemy and how to respond to changes in the battlefield over a given area. It explains that one should assess their opponent to discover the weak points and concentrate their efforts on exploiting those weaknesses and the importance of knowing when to exploit those weaknesses.
“Hence that general is skillful in attack whose opponent does not know what to defend; and he is skillful in defense whose opponent does not know what to attack.”
“The spot where we intend to fight must not be made known; for then the enemy will have to prepare against a possible attack at several different points; and his forces being thus distributed in many directions, the numbers we shall have to face at any given point will be proportionately few.”
- Always ask, where the opponents’ vulnerable points lie, and how one may fully exploit them within the limits of the ethics. When one is fortunate to hold the upper hand (or to appear to), it is then that one stands the best chance of victory by persuading the opponent to abandon their arguments and come to an agreement. Timing is key.
VII. Maneuvering: This chapter focuses on the dangers of direct conflict and how to win those confrontations when they arise. It is important to always be one step ahead of the enemy and not allow them to get the upper hand.
“In war, practice dissimulation, and you will succeed. Whether to concentrate or to divide your troops, must be decided by circumstances.”
“Ponder and deliberate before you make a move.”
- Everything you do has to be a specific reason. Ultimate victory is not winning every battle, but in defeating your opponent. Preparing for a variety of responses, not just the most likely, is essential in the preparation process. One must be flexible and have the ability to think on their feet.
VIII. Variation of Tactics: This chapter concerns the need for flexibility in an army’s responses and how to respond to shifting circumstances successfully. Understanding when to fight and when to retreat.
“The art of war teaches us to rely not on the likelihood of the enemy’s not coming, but on our own readiness to receive him; not on the chance of his not attacking, but rather on the fact that we have made our position unassailable.”
“There are roads which must not be followed, armies which must not be attacked, towns in which must not be besieged, positions which must not be contested, commands of the sovereign which must not be obeyed.”
“There are five dangerous faults which may affect a general: (1) Recklessness, which leads to destruction; (2) cowardice, which leads to capture; (3) a hasty temper, which can be provoked by insults; (4) a delicacy of honor which is sensitive to shame; (5) over-solicitude for his men, which exposes him to worry and trouble.”
- Do not always repeat the same tactics which gained you a victory. There is always a need for change in tactics and surprise maneuvers to use the opponent’s psychological dispositions to draw them to vulnerable positions.
- The Army on the March: This chapter discusses the different situations in which an army finds itself as it moves through new enemy territories and evaluating the intentions of others.
“Humble words and increased preparations are signs that the enemy is about to advance.”
“Violent language and driving forward as if to the attack are signs that he will retreat.”
- Reiterating the theme of preparedness, organization, and versatility, and deception.
- Classification of Terrain: This chapter distinguishes six kinds of terrain, to wit: Accessible ground, entangling ground, temporizing ground, narrow passes, precipitous heights, positions at a great distance from the enemy. Accessible ground can be freely traversed by both sides. Entangling ground can be abandoned but is hard to reoccupy. Temporizing ground is when neither side will gain by making the first move. Narrow passes are ones which can be occupied first that can be used to garrison and await the enemy. Precipitous heights should be occupied if you are ahead of your opponent and where you should wait for them to come to you. However, if they occupy them before you, do not follow him, but retreat and try to entice him away.
- In the legal arena, one chooses the terrain (law) by choosing which cause of actions to pursue, which defenses to raise, and which issues to focus on.
- The Nine Situations: This chapter expands upon the analysis of the physical, social, and psychological tactics appropriate for all possibilities.
“Rapidity is the essence of war; take advantage of the enemy’s unreadiness, make your way by unexpected routes, and attack unguarded spots.”
“By altering his arrangements and changing his plans, he keeps the enemy without definite knowledge.”
“If the enemy leaves a door open, you must rush in.”
- Pressure/Motive is not constant. Be aware of pressures on your client, (reduce them by predicting and preparing your client), and time your application of pressure on the opponent to maximize the likelihood of their capitulation.
XII. Attack by Fire: The use of weapons and the specific use of the environment as a weapon.
“The material for raising fire should always be kept in readiness.”
“Hence the saying: The enlightened ruler lays his plans well ahead; the good general cultivates his resources.”
“Move not unless you see an advantage; use not your troops unless there is something to be gained; fight not unless the position is critical.”
- Set the tone. This is helpful to show the opponent all their weaknesses and get them to see things from your point of view. Getting them to think that there is no chance that they could win the case, or they are at high risk and may cause them to settle.
XIII. Use of Spies: This chapter emphasizes the importance of developing good information sources.
“Now this foreknowledge cannot be elicited from spirit; it cannot be obtained inductively from experience, nor by any deductive calculation. Knowledge of the enemy’s dispositions can only be obtained from other men.”
“Hence, it is only the enlightened ruler and the wise general who will use the highest intelligence of the army for purposes of spying and thereby achieve great results. Spies are a most important element in war because on them depends an army’s ability to move.”
- Investigate and know the case before action.
- It is important to use strategy when choosing who to depose. Not only should you depose people who will make your case stronger, but people who can make the opponent’s case weaker. Selectively keep some information in reserve for use at the most effective moment.