Defending People

the tao of criminal-defense trial lawyering

Sun Tzu and Lao Tse

In a com­ment to my Anger and Fear post (in which I advo­cate try­ing cases in the moment and with­out fear), Okla­homa criminal-defense lawyer Glen Gra­ham wrote:

I dis­agree with the story. To me, it seems like the guy should being think­ing about life. He should look for crevices in the rocks to grab onto and he should fight, fight, fight !!!. A lawyer who is think­ing about how good the straw­ber­ries are instead of how to win his case is not being a true war­rior and not being the best advo­cate for his client. The art of advo­cacy is in some sense the art of war. Zen phi­los­o­phy tends to cause the advo­cate to loose his incen­tive to fight the good bat­tle.
If you want to read good asian phi­los­o­phy, take a look at “The Art of War by Sun Tzu.

The story Glen is talk­ing about one that Jon Katz had cited as an exam­ple of liv­ing life with­out fear. I had quoted it, tag­ging it a “Zen story.” (Jon may not agree with that char­ac­ter­i­za­tion — he learned the story from a t’ai chi mas­ter; as I under­stand t’ai chi, its philo­soph­i­cal under­pin­nings lie in Tao­ism, which forms a foun­da­tion for Zen Bud­dhism as well. As far as I know, the tiger story came from the Zen tra­di­tion, but it might as well be a Taoist story — or, for that mat­ter, a Sufi story. To quote Pooh, “It’s the same thing.”):

A man is chased in the wilder­ness by two tigers, only to be forced off a cliff, hang­ing for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild straw­berry grow­ing from the side of a cliff, reaches for it, tastes it, and — with his life hang­ing in the bal­ance — thinks of how deli­cious the straw­berry tastes.

While it should be required read­ing, the Art of War doesn’t, by itself, give us any idea what to do when the tiger chases us off the cliff. With­out more con­text it’s strat­egy rather than philosophy.

To under­stand the Art of War a reader should under­stand the phi­los­o­phy under­ly­ing it, and know him­self. Sun Tzu wrote:

Hence the say­ing: If you know the enemy and know your­self, you need not fear the result of a hun­dred bat­tles. If you know your­self but not the enemy, for every vic­tory gained you will also suf­fer a defeat. If you know nei­ther the enemy nor your­self, you will suc­cumb in every battle.

If you don’t know your­self, the Art of War won’t do you any good — you will lose every bat­tle. The book itself doesn’t pro­vide us with any help in know­ing our­selves; it doesn’t even tell us what Sun Tzu meant by “know your­self.” To under­stand Sun Tzu and the Art of War, first we have to under­stand what he meant by “know your­self,” and then we have to know our­selves in that way. With­out an under­stand­ing of the phi­los­o­phy under­ly­ing it, the Art of War is noth­ing more than a book of tricks. It doesn’t give you any strate­gic advan­tage because any­one can learn the tricks.

To under­stand the Art of War, there­fore, first study the Tao Te Ching, or t’ai chi, or Zen, or aikido, or act­ing, or impro­vi­sa­tional the­atre, or any other dis­ci­pline that seeks a state of pres­ence in the moment. Then, once eat­ing the straw­berry makes sense to you, read Sun Tzu.

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About The Author

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.

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