Trial Prep: Listen to Bum

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Now that's a Texas football coach.

If you asked me to show you a picture of a Texas football coach, I’d find a picture of Bum Phillips. That’s just my own stereotype–cowboy hat, barrel chest, cinderblock jaw.

As coach of the Houston Oilers, he wasn’t as successful as his NFC counterpart near the north-end of the state. Mostly, he just looked and acted the part and never worried about what others thought, and that’s fine with me.

He said the following about Don Shula:

“He can take his’n and beat your’n and take your’n and beat his’n.”

Remember that. I’ll come back to it.

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In the military, the process of devising missions and planning operations is called the Military Decision Making Process (MDMP). It is a rigid, highly-detailed, multidisciplinary process that allows commanders to make informed decisions.

One of the most important aspects of MDMP is something called G2, or the intelligence piece. G2 refers generally to the collective group of staff officers tasked with analyzing the enemy, estimating their likely course of action, and determining their capabilities. Without this key part of mission analysis, an operation would be nothing more than a stab in the dark.

Their importance is simple. Until you know what your enemy can/will do, you’ve got no business planning anything.

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Here's an example of one...

A quick look in the phonebook or Google search will show you that many, many criminal defense attorneys tout themselves as “former prosecutors.”

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Here's another one.

I can see advantages to having experience as a prosecutor (having formerly prosecuted cases myself). However, most of those who tout the “former prosecutor” tag do it to imply that they have an “in” with the local prosecutors and can work a sweet deal. While this may be true, would you also advertise “Drinking buddies with the chief prosecutor” or “Plays golf weekly with two criminal court judges” or “Coaches a little league team that features 2 prosecutorial spawn” or “Sees senior deputy prosecutor in communal shower at country club, daily!” No. Well, if you wouldn’t say those things, why the hell would you imply them?

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And yet another...

Really, they all miss the point.

Being a former prosecutor can be helpful if you use that knowledge to enhance your ability to perform a good “G2” analysis. Since you’ve worked as a prosecutor, you presumably know how prosecutors think, and you can plan for what they might, can, and will do. That’s great. Is it necessary? No. Can you figure it out if you’ve never been a prosecutor. Sure. Just as you can be a fantastic trial attorney without some fancy schmancy “Certified Trial Attorney” badge, you can excel as a criminal defense attorney without having been a prosecutor.

And one final....... ........oooh, shiny......

Just because it is helpful does not mean it is necessary. You just need to develop the skill without the firsthand knowledge–just as some highly successful football coaches never played ball in college and beyond.

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So, how does this all tie-together?

If you want to be competent (and subsequently successful), you must analyze what your “enemy” is going to do. Unfortunately (and surprisingly to me), I get a lot of resistance to this.

Even experienced litigators tell me to forget about opposing counsel and just focus on my case. They tell me to only focus on what I can do, not what others might/will do. Often, these lawyers are highly experienced and successful.

I can’t agree with them, and I doubt I’ll ever see it from their perspective. Frankly, I think they consider opposing counsel, but they don’t notice that they are doing it.

Our trial prep always includes an analysis of opposing party capabilities. We draw charts and create tables to show what they can, might, and will do. It takes hours.

At the end, we completely rehearse the trial, from the smallest beginning minutiae to the end of argument.

For the opposing party, we use their “Most Dangerous Course of Action.” That is, we determine what they could do to thoroughly whip our ass and rehearse as though they try that perfect case. For all else, we develop contingency plans to account for things that might happen during trial. It is frustrating, and often a humbling reality-check on a case we’ve fallen-in-love-with. Some lawyers can’t stomach the self-deprecation that must occur. For me, it’s just part of the process.

Of course, once we enter the courtroom, everything descends into chaos. C’est la vie.

Many will argue with me about the value of a solid G2 analysis, but I will always believe it essential. I’d rather have a good plan that goes to hell than have no plan at all.

It never gets discussed on ESPN, but I believe that neither defense nor offense wins championships in sports. Instead, good scout teams–those unsung working-class guys who learn the opponents’ tactics and throw them at the starters from Monday through Friday–win championships. Without them, those starters, with their fancy game plans, are merely stabbing in the dark.

So, to paraphrase Bum:

Before you can beat his’n with your’n, you must learn how to beat your’n with his’n.

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