OBSERVE seems obvious but is frequently honored in absence. The usual scenario where a lawyer fails to observe is a very well-prepared and scripted trial with no deviation from the script based on circumstances. The lawyer is head down, focused on the line-by-line list of questions. No confession or concession will redirect the presentation until the final period on the final question is concluded. “Observe” may be the most important verb in this loop. The witness stand may be the first experience with the witness on direct. Cross-examination should account for what the witness said or did not say. It should also address their demeanor, dress, and the effect of the testimony. The most profound cross-examiners seem to find that confession or concession that other counsel were hoping was lost.
TWO PRINCIPLES FROM THE MILITARY THAT Every Trial Attorney Should Know
BY HON. ERIK H. NYCE
I have always wondered about decision-making and communication in our strange occupation. Lawyers are given daunting responsibilities and free discretion in their activities. Lawyers face a tri-partite of potential adversaries—opposing counsel, the judge, and the client. The training we receive does not prepare us for what we do. Yes—we can recite the substantive law and the rules but how do we use it in “the heat of battle” at trial? Here are two principles that will help narrow that gap.
The OODA Loop
Several years ago, I ran across Colonel John Boyd’s OODA Loop while reading about military history. It would make sense that the military would develop principles on decisionmaking and communication. After all, they take 18-year-olds and give them responsibilities with serious consequences. OODA stands for OBSERVE, ORIENT, DECIDE, ACT—and repeat. Ergo the Loop.
ACT happens mostly without prompt but makes sense that we have to be reminded to act. In the military and the practice of law, inaction may be worse than making a mistake. Inaccurate judgment may result in the loss of a battle or a client. Inaction may result in the loss of the war, or the failure to preserve an objection or issue. It may also result in the loss of the attorney’s license.
The loop aspect is a reminder that we must continue to evaluate the results until the matter is concluded. The OODA loop is “worth a google.” There are numerous articles and graphics that explain and expand the principle, and it has its own Wikipedia page. But, applying this moniker will help us all be better in the heat of battle.
Bottom Line Up Front—BLUF
Lawyers are given daunting responsibilities and free discretion in their activities. Lawyers face a tri-partite of potential adversaries—opposing counsel, the judge, and the client. The training we receive does not prepare us for what we do.
ORIENT is to use training, experience, the litigation plan, and the theme of the case during the trial. It may be a question on direct or cross. It may be an objection. It may be a gesture or expression well-timed before the jury. It may be the famous or infamous EXHIBIT 1 that every lawyer aspires to have. Orient means to be the trial lawyer during the trial.
DECIDE
is the lawyer’s next obligation. Whether the lawyer has observed and is oriented is apparent. The case may never end if the lawyer mechanically attempts to question every witness on every fact. Cross-examination always has the balance of whether it rehashes the direct or provides support for the theme. Impeachment and credibility questions may do neither. A win or loss could be one question away. Every trial lawyer post hoc has been examined, “why didn’t you ask . .?” The calm, quick response is, “I decided . .”
Mark Twain once famously wrote “I apologize for such a long letter—I didn’t have time to write a short one.”
BLUF is a communication dictate that provides that the most important information should be provided up front. This in inapposite to the deductive reasoning approach where the general ideas and facts are discussed to form a conclusion—usually at the end.
The US Army’s Soldier’s Guide, TC 7121.13 under Soldier’s Tools, 9-8. Communication Skills advises: “Using the mnemonic BLUF (Bottom Line Up Front) will help ensure your message meets [the communication objectives.]” Anyone who has sat in a crowded courtroom watching a lawyer, or witness, provide a historical narrative beginning with “I was born” will concur with that sentiment. I could continue with this discussion, however that would violate the rule.
Lawyering is no easy task. But, by practicing OODA and BLUF, we can all be better in the courtroom.
