Sun Tzu: The Art of Appellate War

[The following is a transcript of an exclusive interview with Sun Tzu, the famous Chinese general who lived more than 2,400 years ago. His work, Ping-fa (The Art of War) has been handed down through the centuries as an outstanding treatise on warfare. Recent generations have found applications of his teachings to areas other than the military, such as business relationships and politics. Asked to consider the application of his work in the field of appellate advocacy, he graciously agreed to share the following thoughts.]

Do you really believe that your teachings have any relevance to something as sophisticated as appellate advocacy?

Certainly. Otherwise we would not be having this conversation.

But there were no appellate courts in your day; even the concept of judicial review, at least in American jurisprudence, was not established until 1803, more than 22 centuries after your death. How do you know anything at all about this subject?

Let’s just say I have been following it. Beyond that, if you can believe that you are actually having a conversation with a long-dead ancient historical figure, in English, no less, why not agree to suspend your disbelief in this area as well?

Well, I—

Look, why don’t you ask your first question, and we’ll see how it goes.

All right; I can’t argue with that logic . . .

You see? I already know something akin to your Socratic method. A fine man, that Socrates, by the way. He was a soldier, too, and a contemporary of mine.

One of the concepts you stress in your book is that of flexibility, in both strategy and tactics, for the successful military leader. How does this apply in appellate courts? Once the briefs are in, aren’t the issues irrevocably framed?

The framing of issues is obviously one of the strategic considerations for any appellate lawyer, and I agree that once you set forth what issues the appellate court will consider, you are bound by those. But tactics is another matter entirely. For example, in oral argument, even the most elegant, well-polished presentation is liable to get interrupted with a question, and then you must adapt to the newly-changed circumstances. You have a military saying, from one of your Nineteenth Century Prussian generals, Helmuth von Moltke: “No battle plan survives first contact with the enemy.” In your context, no oral argument script survives the first interruption from the court.

So questions are like hidden enemies? Something you can’t fully anticipate, but must deal with when they arise to shoot at you?

Certainly not; questions in appellate oral arguments are not enemies at all. They are perhaps your best allies, since they tell you what is on the mind of at least one jurist. The key to giving the best answer to any question is to face it head-on, answer it directly and then weave that answer into the tapestry of your argument. Just giving a straight answer, and then returning to your planned outline, is journeyman-level advocacy. Showing how the answer fits within the pattern of your argument is the work of a master advocate.

In Chapter 4, you stress the importance of defense. You maintain that “Defense is invincibility” –

Actually, I wrote that “Invincibility is defense.” But the distinction is not important in this context.

Well, the appellee is always on the defense in appellate courts, but appellants win often. Is this one of those concepts that apply to battles but not to appellate courtrooms?

No, I believe it is better to be able to defend something instead of having to attack something, and that this concept applies equally well in the appellate courts. There is a maxim that is common in your appellate bars: “The best appellate strategy is to win in the trial court.” But one thing you should consider is just who is really doing the defending. For example, the usual rule is that the appellee, who prevailed in the trial court, gets the benefit of a favorable view of the facts, and all reasonable inferences therefrom. That’s a very formidable position. But when a jury rules one way in a trial, and the trial judge sets that aside and enters judgment for the other party, then the roles on appeal are reversed, at least as far as the facts are concerned. The appellant gets to “defend” the facts, and really has a serious advantage in the appellate court. In order to figure out who is really defending what, appellate lawyers must start their analysis of a case by determining the standard of review that applies in the case. Given how important this single factor is, I believe each and every brief should begin with a section that sets forth what the applicable standard of review is. That really decides many more cases than do precedent or the particular facts.

Did you know when you wrote The Art of War that you were writing something that applied to future appellate practice?

No; I suppose I just got lucky in this regard.

Well, if invincibility is defense, and appellees generally get to defend the facts, what accounts for the success rate of appellants? What advantage do appellants have to offset the appellees’ defensive posture?

The appellant’s advantage is strategic, and that is to choose the battleground. The successful general views the terrain, evaluates his enemy’s position and strength as well as his own, and then chooses a field that is most advantageous for him to fight upon. The appellant gets the most important advantage of all, that of choosing which issues will be the subject of the appeal. By selecting which issues to press in the appellate courtroom, the appellant can find a battleground that is most conducive to his ultimate victory.

But isn’t an appellant constrained to appeal only certain things?

No; an appellant can appeal anything he wants to appeal, so long as he has preserved the issue properly in the trial court. He must select those issues that are the most likely to achieve his strategic goal, which is a reversal.

Isn’t that very unlikely in most trials? Aren’t most trials conducted in such a way as to eliminate any meaningful chance for a successful appeal? What’s an appellant supposed to do in that case?

The first thing a prospective appellant’s lawyer should do in that case is to go back and read my book, particularly the part where I state that doing battle on unfavorable ground should be avoided. Case selection is an essential part of appellate practice. A successful general never embarks on a war in which he is outnumbered and poorly provisioned, and occupies unfavorable ground. A successful appellate advocate will not appeal the unwinnable case.

But doesn’t the client get to make that decision?

Only in a criminal context. As I mention in Chapter 8, there are some commands of the sovereign that a general must not obey. Similarly, in civil litigation, a client cannot compel the lawyer to press an appeal, especially where the lawyer knows the appeal will be frivolous. A criminal client who has been convicted can compel his lawyer to pursue an appeal; the client has the sole right to make that decision. But even in this context, the general – the lawyer – retains control over which issues will be appealed.

Here’s one that cannot have any application to appellate practice; in Chapter 2, you mention that the wise general gets his food from the enemy, I suppose by capturing his supplies. That doesn’t have any application to appellate courts, does it?

Actually, I think it can. The “food” of any appeal, at least the civil ones, is money. Appealing a case is very expensive, and many potential appeals are not pursued simply because the cost to do so is prohibitive. But if there is a way to shift those costs to your adversary, then an appeal becomes not merely affordable, but desirable.

How can a lawyer do that?

Generally with some sort of fee-shifting statute; the most famous is your 42 USC §1988. For frivolous appeals, of course, you have FRAP 38 and 28 USC §1912. In other cases, look to where a statute gives a prevailing party an award of attorney’s fees. In virtually all such contexts, a fee award is available in appellate courts when such fees may be assessed in the trial court. If the appellant wins in the appellate court and thereby establishes a right to an award of fees that had not been awarded before, he will now get fees for both the trial court and the appellate court – a real bonanza.

Let’s skip forward to Chapter 6, where you urge a general to be like water, avoiding the solid and striking the empty. What do you mean by that, and how does it apply to appellate lawyers?

It is useless for a general to attack a solid, well-defended position; that will result only in the destruction of the general’s army. Attacking where the enemy is weak, however, is comparatively easy. The key in a military setting is to determine where the enemy is weakest, and attack him there. Your General Stonewall Jackson did that to great effect at the Battle of Chancellorsville in 1863; despite having inferior numbers, he found the greatest weakness in his opponent’s line, and routed it. In an appellate court, it is useless to fashion a strategy that requires the lawyer to defend an untenable position, just as it is folly to make an attack upon a statute, or a set of facts, that is unassailable. The wise appellate advocate will thus readily concede points that in reality he must concede, and focus his energy on where his opponent is weak. To do otherwise, to insist on the truth of an untrue position, is inadvisable for the lawyer, and ultimately fatal to the case.

What about this line in Chapter 11 of your book, where you seemingly applaud the idea of climbing high, and then removing the ladder? How could this possibly be in the best interest of an appellate lawyer?

I see this all too often when an appellant, bent on covering all his bases (in addition to your appellate courts, I also watch baseball), lists every conceivable issue for appeal, instead of just focusing on the strongest ones. While this is a form of defensive lawyering (since the lawyer can’t be sued for malpractice for leaving out a potentially winning argument if he appeals everything under the sun), it is ultimately an ineffective form of persuasion. Appellate jurists strongly prefer briefs that address a very few issues, and address them thoroughly, concisely, and effectively. They dislike reading briefs that take what you call the shotgun approach. That betrays a lack of confidence in the lawyer’s better arguments; he is leaving several ladders in place, in case he needs an escape route.

So the appellate lawyer should appeal the fewest possible issues?

Generally, yes; three or fewer is ideal. The one exception, where you must appeal an otherwise non-crucial issue, is where a ruling has been made against the client in the trial court on a point of law (for example, the admissibility of certain evidence) that may arise again on a retrial. If the appellant does not appeal that, and secures a reversal and a new trial, the unappealed ruling can be, and usually is, regarded as the law of the case, and will not be revisited. In that event, the unfortunate ruling will be binding on the trial court on retrial. If there are any issues such as these, the appellate lawyer must appeal them.

I’d like to ask you about what is arguably the most enduring lesson of your book. If I may paraphrase you, you note that if a general knows himself and his enemy, he wins all the time; if he knows himself but not his enemy, he wins half the time, and if he knows neither hmself nor his enemy, he wins not at all. Is that true of appellate lawyers as well as generals?

Absolutely. On a surface level, the successful appellate lawyer never goes into an appeal without finding out what he can about his opposing counsel. But the more important application of this lesson is in the general’s armies – or in your case, the attorney’s caselaw. If you go into an appeal knowing little about the caselaw you and your opponent cite – if, for example, you have only read the headnotes or a few selected pages from the opinions – then you are on your way to certain defeat. You may instead elect to peruse your own caselaw carefully, so as to be able to respond to the court’s questions; assuming you do that faithfully, you can expect to win about half the time. But in order to be certain of your advantage, you must know both your caselaw and your enemy’s. There is a motion picture from your time that I particularly like, since it uses so many of the principles I espouse in my book; it is the Godfather series. In that, one general relates what his sire taught him many years before: “Keep your friends close, and your enemies closer.” This applies to appellate advocates as well. If you know your opponent’s caselaw better than your own (but in any case better than he does), then you will be on your way to victory.

Modern writers who analyze your book describe your overall concept as that of “taking whole,” of winning without fighting. You have surprised me with the applicability of some of the other military precepts to appellate practice, but I have to confess that I cannot envision how an appellate lawyer can win his case without fighting. Am I wrong?

I am sorry to say that you are, in my view, quite wrong. The easiest application of taking whole to your milieu is to settle the case; in that event, neither side needs to win the appeal. It goes without saying that the fact that a case has been appealed does not mean that the entire matter cannot be settled by agreement of the parties.

Sorry; you’re not getting off that easy. Just saying you can settle any case doesn’t equate to taking whole. I mean, anybody can settle his case at any time by just caving in to the other side, right?

Well, on another level, the concept applies to your appellate courtrooms even if the case cannot be settled. Often there are two or more ways in which to approach a given appellate problem. The wise general realizes that he should not attempt to destroy his enemy if he can take him without combat. The wise lawyer realizes that attacking, let us say, the constitutionality of a statute, while it may result in victory, is not necessary if the case can be won by a narrower approach, one that does not require the appellate court to destroy the statute. Appellate jurists do not prefer to lash out at the work of a legislature if they can achieve the same end by distinguishing the facts or by applying a different statute that creates an exception. In this way, the able general can capture the appellate victory without bloodshed – at least to the thing that the jurists are commissioned to protect.

In Chapter 7, you mention a couple of ways in which armies have adapted to various difficulties – using sound, such as drums and bells, to enable the soldiers to move and fight at night; or pennants, to facilitate long-distance communication. Is there a parallel in appellate practice?

Well, obviously, I do not recommend bringing bells to your oral arguments, even if the court convenes at night. The lesson here is adaptability. The rules relating to appellate practice have changed over time, in several ways. Early in your Nineteenth Century, oral argument in your Supreme Court was unlimited in time, producing skilled orators who could hold even the most jaded audience enrapt for hours or even days at a time. But as I understand your current rules, time limits are far shorter, perhaps only a few minutes per side. You also have strict page limits on briefs. The appellate lawyer of the Nineteenth Century would fail utterly in your time. The skillful Twenty-First Century advocate must prepare sharply focused briefs that cut to the heart of the dispositive issue with the practiced hand of a surgeon. The oral advocate must get to the point quickly, making his argument forcefully and persuasively, with a minimum of flowery eloquence. Efficiency is essential in your modern appellate practice.

So there is no place for eloquence? In the words of one recent television show, “Just the facts, ma’am”?

Only if one would aspire no higher than the level of the journeyman advocate. It is possible to write an adequate brief, or to give an adequate oral presentation, with no passion whatsoever. But the master instills the court with a reason why it should rule in favor of his client’s favor, and only then gives the court the legal basis – the ammunition, in the context of my specialty – with which to so rule. Passion must not be permitted to rule the day, of course, either on the battlefield or in the courtroom But a completely dispassionate presentation, whether on paper or in the spoken word, does little to inspire a sense of right. It is important to balance the two interests, just as I would expect one of my generals to balance his attack with chariots, archers, and infantry. None of these three, operating alone, can win a battle.