The Art of Trial Warfare: Winning at Trial Using Sun Tzu’s The Art of War

Michael S. Waddington

Date of Publication – January 29, 2016

147 pages


What Is This Book About?

In The Art of Trial Warfare: Winning at Trial Using Sun Tzu’s The Art of War, Michael S. Waddington writes about how the teachings of the ancient warrior philosopher, Sun Tzu, can be applied to modern trial practice. This book takes the words of Sun Tzu himself and shows how the trial warrior applies these quotes in the courtroom with Waddington’s “Sun Tzu Said:” sections. The Trial Warrior is a fictional character based upon the experiences of Michael S. Waddington himself. 

What Did I Like About the Book?

I liked the book’s set up. The chapters were well-organized and the writing style was easy to understand. I also loved the competitive nature that Waddington brought to life through his pages. From the very beginning, Waddington talks about how trial is a war and in order to succeed you must become a master on both the strategic and tactical level. This includes mastering yourself and our opponents, as well as being physically and mentally disciplined. The most important thing, however, is being ready to attack and overwhelm your opponents, and only then can you become a Trial Warrior. By adding this competitive nature to his writing, Waddington takes his readers through “war” in a vivid and creative way.

One of my favorite “Sun Tzu Said:” pieces was “A kingdom that has once been destroyed, can never come again into being; nor can the dead ever be brought back to life.[1] Waddington then goes into a discussion about credibility. In just our second book to review, we again see the great importance credibility bears in the courtroom by another trial attorney, just like we saw in Making Your Case: The Art of Persuading Judges by Anotin Scalia and Bryan A . Garner! Here, in The Art of Trial Warfare: Winning at Trial Using Sun Tzu’s The Art of War, Waddington wrote, “The Trial Warrior knows that credibility and integrity are the most important character traits for trial lawyers. They are built over a lifetime, yet can be destroyed in an instant.”[2] Credibility is crucial for an advocate, and that is a recurring trend I’m sure we will see as we continue reading more books.

What Didn’t I Like About the Book?

Honestly, this book felt very short, and at times, a little repetitive. I feel like Waddington included a lot of the same points over and over, which is interesting because in the book, he stresses the opposite and how juries don’t have long attention spans so it is important for The Trial Warrior to get in, get his point across, and get out. Then again, repetitive nature is what helps embed concepts in the minds of jurors, so wouldn’t that be the same for readers? Waddington may have been using a trial trick himself on his readers!

What Did This Book Teach Me About Advocacy?

Waddington wrote, “Before trial, the Trial Warrior carefully plans and prepares, but is always ready to modify plans to exploit a weakness or opportunity.”[3] This is something I really struggle with, because you can prepare all you want for a trial, but nothing ever goes like it is supposed to. As a litigator, we must be adept at working on the fly and changing certain things in an instant, and that’s okay. Change isn’t necessarily all bad. But being able to work on your feet is such an incredibly important skill for an advocate, and something we can always continue to gain experience with. The more we practice, the better we become.

How Am I Going to Be Able to Be a Better Advocate Because of This Book?

The Art of Trial Warfare: Winning at Trial Using Sun Tzu’s The Art of War taught me there are five dangerous faults that may affect a general at war (or an advocate in court) and those faults are:

  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.

Waddington says in order to be a successful Trial Warrior, we must look for these flaws in ourselves. I plan to avoid all of these dangerous faults as a mock trial competitor and future litigator.

I am going to avoid the first dangerous fault, recklessness, by thinking twice before making what may be an unnecessary objection. Waddington writes in another part of the book that “many lawyers are undisciplined at trial. They make unnecessary objections and present weak arguments.”[4] The second dangerous fault is cowardice, and I aim to avoid this one by being bold. I want to provide the judge and jury with well-planned and thought out arguments, but I understand that sometimes, I may have to “roll with the punches” and I don’t want to miss an opportunity because I was nervous or scared.

The third dangerous fault is a hasty temper. Our trial advocacy professor, Jared Hatcliffe, always tells us that the number one rule of trial advocacy is always look good in front of the jury. Jurors tend to be displeased with lawyers who object too much, or take a cheap shot at their adversary. Being the bigger person tends to go far in advocacy, and I plan to continue “looking good.” As a good advocate, all my plans have to be well-thought out and I must avoid rash decisions.

The fourth dangerous fault is a delicacy of honor which is sensitive to shame. Here, both Sun Tzu and Waddington, advise the reader to not think too much about the public’s opinion and on occasion, one must be willing to do what is unpopular. The right thing to do is usually the hard thing to do, and I think that is a rule that we can apply to advocacy as well.

The fifth dangerous fault is over-solicitude for his men, which exposes him to worry and trouble. As attorneys, not everyone is going to like us and that’s okay. A judge I interned for once described her job as difficult because she knew no matter her decision, one side is usually unhappy with her. This is normal in our field and line of work, but cannot stop us from making those important decisions.

[1] Michael S. Waddington, The Art of Trial Warfare: Winning at Trial Using Sun Tzu’s The Art of War, 133, (2016).

[2] Id. at 133.

[3] Id. at 21.

[4] Id. at 81.