A Tactical Wheel for the Defense?

Every defense attorney has their own favorite metaphor for what we do.  Some talk of it like a street fight, envisioning a slugfest with the cops or the court or DA (or all three).  Others speak as if it’s a poker game (with the other side usually holding all the aces).  Occasionally, we even hear chess analogies.  Well, for whatever reason, we tend to think in fencing terms.

On the one hand, this makes little sense, as we haven’t fenced much since our kids started coming along.  (Literally.  Our wife went into labor with the first one right in the middle of us getting trounced by some French guy in an épée tournament.)  But on the other hand, we do find the analogy extremely useful.

Like fencing, much of what we do is reactive.  There’s something they teach fencers called the “tactical wheel” which starts off with a simple attack, which gets countered by a parry and riposte, which gets countered by a feint, which gets countered by a counterattack into the feint, and so on until you’re reacting with a simple attack.  You’re always reacting to what your opponent did, and trying to use your reaction to score off him instead.  That’s pretty much what we do.

Note that each reaction is not merely a defensive parry.  If all you’re doing is deflecting attacks, you can never win.  Eventually, one of them’s going to get through.  Every defensive action is an attack of some sort.  You win by taking the game to the other guy.  You go on the offense.  Make the other side react to you.  The best defense, as always, is a good offense.

And as in fencing, you pretty much have to take your opponent as you find him.  Different tactics are going to work with different situations.  It’s nice to know what works when.

That whole “tactical wheel” thing only really works, of course, if both you and your opponent are of intermediate skill.  A novice doesn’t always do the smart thing, which throws such rote tactics into disarray.  An expert, with a zen-like empty mind, is not hindered by the rule of thumb, and is free to react to this particular action in the most effective way.  Still, there is something to be said for a rule of thumb.  When all else fails, you have something to fall back on, which at the very least assures you of a solid, workmanlike job.  It may not be elegant, but the odds are safe.  And with the vast majority of opponents, it’s going to be all you need.

So what would such a tactical wheel look like for criminal defense?

It’s not going to be as one-dimensional as that for fencing, for one thing.  In fencing, you only have one opponent.  Here, you have to deal with a prosecutor, the police, and the judge — each of which has their own motivations and tactics.  You could get a combination of an easygoing prosecutor, a cop who’s making his story up after the fact to justify his gut reactions on the scene, and a judge who’s nice enough but doesn’t know what he’s doing.  Or you could get a true-believer prosecutor, a diligent cop, and a prick for a judge.  Or an in-over-his-head prosecutor, an average cop, and a stellar judge.  The permutations are far too many to go into in a simple blog post.

But if we limit it to just the prosecutor, we can start something useful.  Most cases, after all, are resolved between you and the prosecutor.  The fight there is to get the best disposition, as opposed to winning a trial.  Here are a few extremely glib, oversimplified examples of what might be in your toolbox in such cases:

One very common type of prosecutor is the neophyte who hasn’t really developed a sense of perspective, a working bullshit meter, or any of the other attributes of experience.  You can expect this one to play it straight.  No creativity.  Every move is a simple one.  So you respond with simple deflections and go on the offense.  Put them in a situation they have not yet learned how to deal with: being on the defensive.  Keep on the attack, hitting their errors and omissions — and they will make them — and keep them wrongfooted.  Win the psychological victory early, maybe with a motion that gently points out the right way to do their job.  Keep helping them psych themselves out, and stay in charge of that case all the way to the end.

Another common type of prosecutor is the bully.  The bully is unthinking and obstinate.  Principled argument will not work, because they’re just not thinking that hard about the case.  Their response to any reasonable suggestion or negotiation is something along the lines of “tough shit.”  They’ve given you their terms, and there is nothing you can say to change them.  Bullies are usually this way because they are in over their heads and, at some level, they know it.  It’s all they can do to hold their ground.  Any modification of their position can only be a concession of weakness.  This is the secret to dealing with them.  The proper response in this situation is to become a bully yourself.  Just say “no” to everything they throw at you.  And keep saying “no.”  It becomes a game of chicken.  The bully is going to break before you do.  It’s what they do.  The insecurity that made them a bully in the first place is what will work in your favor.

Our favorite kind of prosecutor is the smart one who is willing to consider new facts, or a new way of looking at the facts they already have.  Someone receptive to a negotiation based on underlying principles, rather than a mindless rug-bazaar back-and-forth.  They are out there.  The proper response is, of course, to change their perception of the case with new facts, a new way of looking at the facts, and principled argument.  They’re really out there.

Our least favorite kind of prosecutor is the incompetent.  They’re either careless, lazy or just plain stupid.  They’re out there, too.  They’re the ones who just don’t get it, no matter how many times you beat them over the head with the plain fact that they have no case.  You wind up going to trial on a case that never should have been written up in the first place, and you’d never counsel your client to accept the offer.  Going up against these can be immensely frustrating if you’re thinking like an intermediate fencer.  They don’t know the rules, they’re not rational, so they’re not predictable.  You have to really be zen-like here, not limited by your expectations of what ought to happen, so you’re free to react to what does happen.  (Going over their head to their supervisor is rarely as useful as one might think, because the supervisor knows even less about the case, and has little to lose from just going forward.)

And then of course you’ve got the true believer, a suited vigilante.  They are often confused with bullies, but they aren’t the same.  The true believe is firmly convinced of the rightness of this prosecution, and the offer that seems insane to you seems precisely just to them — if not obscenely lenient.  You’re not going to get anywhere trying to convince them that this particular defendant is not someone that penalty rationally applies to.  A principled discussion is not going to happen, because you’re coming from two incompatible sets of principles (one presumes).  You’re barely speaking the same language.  The trick here is to actually argue based on their own principles.  If they’re really a bully in disguise, that’s going to become obvious very soon, and just react accordingly.  But if they really are a true believer, you’re going to have to think like one yourself, if there’s going to be any meeting of the minds.  But don’t make the mistake of playing chicken with this one.  The righteous are as famous for their caving as they are for their compassion.  Take them to trial, by all means (done right, a jury can be moved to distaste for them), but don’t bluff with your client’s liberty at stake.

No matter what you do, however, you must always ALWAYS go on the offensive.  You be the one in charge of the case.  Make them react to you, and keep it that way.  Nobody ever wins by playing defense.

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  1. Elkus & Sisson PC, December 8, 2010:

    Elkus and Sisson here from CO. Your blog is one of the best! Thanks for such a wonderful post.

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