The Illusion of Control

[jmm99]

your 8 power points from a military standpoint. If I fooled around with, and changed, some terminology, they generally would apply to trial work.

One metaphor ...

3. There is no AOR. There is no control. One is merely riding a wave. If you are really good, then you may influence. If not, then you simply get in the way.

I can discuss - again with reference to its context in my little world.

In a litigated case (for simplicity, we'll have two clients and two lawyers, a judge and a jury panel), you have a number of key factors:

1. Facts (witnesses & exhibits)

2. Law

3. Judge

4. Jury

5. Clients

6. Lawyers

Interestingly enough, all of these factors are objectively fixed - at least within the context of the trial. Some may be subjectively unknown or uncertain (e.g., the perceptions of the jury and judge). Some may conflict (the clients and lawyers certainly do - otherwise there would be no trial).

Those factors make up my wave - and one I have to ride (unless I reject the case).

Does the skill of the lawyer make any difference ? Back in the day, the American Jury (1966) was studied by every trial lawyer with any brains. That was a large project with many sub-branches. One experiment was to match average lawyers and top-notch trial specialists.

The lawyers were given a set of facts (including witnesses, exhibits), a given set of laws (the jury instructions), the judge (unknown to the lawyers), and the jury (also unknown to the lawyers). They then made closing arguments to the jury. The top-notch pros won only about 5% more of the same cases than the average lawyers.

This result is somewhat along the lines of your:

If you are really good, then you may influence. If not, then you simply get in the way.

and should have influenced JMM to do some other things in life - since what real difference would JMM make. Know many lawyers who took that course.

But, that wasn't me. So, what was missing in the experiment ? The missing element is the lawyer's skill in shaping the case - which might be considered by some to be controlling the case. Actually, it's not that; but it is gaining as complete knowledge as you can of the factors that make up the wave you will ride into that courtroom.

In short, learn all the facts that are favorable, unfavorable and that can be developed. Same for the law. Learn everything you can about the opposing client and lawyer, the judge and jury array (the 50-100 folks from whom the 6- or 12-person jury will be selected). Also, the same for your client and yourself (critique your successes more than your defeats - errors in the latter will be obvious). In short, explore the wave horizontally and vertically - and from all angles. And, expect to spend by orders of magnitude more time in preparation vs time spent in the courtroom.

By the time you've done all that, the AO (in your jargon) is well-defined to you - not by artificial lines drawn by theory, but by knowledge of the actual environment in which you have to perform. The paradox is that while you have no control of the wave, you have a very good idea of which way it will break. When during the trial the wave began breaking in that direction, I felt in control - knowledge is king.

So, the result was that, in 20 years of trial work, I lost very few cases. But, more important, to some of my clients, I was able to settle cases on favorable terms to my clients where I knew things unfavorable to my cases, but where the other lawyers failed to discover those same things. My usual pleasant and charming personality vis a vis opposing lawyers may also have been a factor.

Too long by half - maybe useful, maybe not.

[Surferbeetle]

Some selective quoting...

Actually, it's not that; but it is gaining as complete knowledge as you can of the factors that make up the wave you will ride into that courtroom.

By the time you've done all that, the AO (in your jargon) is well-defined to you - not by artificial lines drawn by theory, but by knowledge of the actual environment in which you have to perform. The paradox is that while you have no control of the wave, you have a very good idea of which way it will break. When during the trial the wave began breaking in that direction, I felt in control - knowledge is king.

My usual pleasant and charming personality vis a vis opposing lawyers may also have been a factor.

Too long by half - maybe useful, maybe not.

JMM,

Interesting, useful, and there are many similarities to methods used at other surfing spots in the big ocean of life...

Best,

Steve

[MikeF]

Since Hammarabi's name is mentioned in vain, I have to get a little legal. So, lots of things in life are "contracts"; but lots of things are not. They go by the names of such as "torts", "criminal acts" - to take into account bad guys who are not very agreeable.

Not sure about control - maybe it should be "we control nothing". Period. Better to learn how to ride the wave - and be concerned not how to control it.

The trial analogy is spot on. I simply have not had time to address your original issue. Torts and "criminal acts" are merely breeches in the contracts- similar to divorce and such....

Thank you for your input JMM. As I said initially, I'm sorting through thoughts to put together collectively.

v/r

mike

[Ken White]

Still, better late and too long by far than never or too short. Even if does appear to contradict (or significantly recast) some stuff from FM 3-24 thereby to slightly confuse the Troops -- a Building 4 specialty...

This ties in with my current thoughts...

Which mostly I share or have shared...

Agree with seven of your Points. This one, too

8. Interdiction can only occur after an insurgency enters Mao's Phase III.

but I think -- this is my Clinton act -- the definition of interdiction can vary and thus, I'm reluctant to agree that the Point will apply in all cases. METT-TC and all that, to be tedious. Heh. Come to think of it, I'm probably still alive 'cause I'm tedious...

[jmm99]

from MikeF
Torts and "criminal acts" are merely breeches in the contracts- similar to divorce and such....

you might consider this.

With divorce, you can find an actual contract between two people - in some countries (e.g., France - or in US pre-nups), a formal written contract; but, in any event, the exchange of vows and also the many understandings that a couple have about their future life together. But, in a no fault divorce jurisdiction, for example, breach of contract is irrelevant to the divorce itself (a pre-nup is relevant to the property settlement). Looking at the larger picture, society (either through customs or explicit laws) develops certain rules for formation and dissolution of marriages.

In the case of torts and criminal acts, the presence of a contract between the perpetrator and the victim is strictly accidental. Of course, one might speak of such things as the "Social Contract" or the "Contract Between Generations", but those are simply metaphors for what a group of people decides it wants to do. Again, society develops certain rules and the penalties for breaking them.

To look at most (much less all) legal rules and situations as "contracts", would in fact violate your power point #6:

6. You cannot wire-diagram 25 million people.

[MikeF]

for your input.

JMM- the lawyer analogy was much better than the emergency room surgeon analogy used in FM 3-24 COIN.

Ken- you're correct. At least we know have a manual on the tactics of COIN. My fear is simply that young junior leaders will take it as the Gospel. We have not yet learn to distinguish between COIN and occupation.

As time allows, I will merge all of these thoughts into a paper. I appreciate the help.

I think points 6 and 8 are off a bit. As I learned today by some wicked smart mathematicians, apparently you can wire-diagram 25 million people. I'm just curious as to the feasibility and cost of it. AND, the interdiction statement came from a discussion that I was having on the possibility of using nukes in the FATA area in Pakistan as a means to end this conflict- just a discussion no oplan.

Thanks again.

And remember, sometimes you have to give up control to regain control

Mike

[jmm99]

From MikeF
JMM- the lawyer analogy was much better than the emergency room surgeon analogy used in FM 3-24 COIN.

Read over the three step ER to outpatient clinic metaphor in 3-24. Seems to me that process could as well (better ?) have been expressed in military language - no legal or surfing metaphors needed either.

The legal analogy to a ER situation is a Temporary Restraining Order - MCR 3.310(B). In that sitaution, you don't have a great deal of time to learn that area of law, generally or specific to the facts of the case. So, best know it ahead of time.

On the other hand, the scope of evidence is limited to:

... specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice or from the risk that notice will itself precipitate adverse action before an order can be issued ...

Of course, you will probably be looking forward to an evidentiary hearing on 24-hours notice - so, case prep involves a focus on primacy and rapid development for that hearing.

Since FM 3-24 was written in the context of Iraq ca.2006, the authors probably felt they had a sick patient on their hands.

The legal equivalent of that is what I call a "broken-back" file, which is all screwed-up and handed off because of the departure of the attorney who was mis-handling the file. There, the best option is buying some time and doing up the file right from scratch.

That might well not be allowed or not possible. And, of course, your armed conflicts do not have rewind buttons.

In a non-rewind legal case, the best approach is to hit as quickly and heavily as possible; negotiate the most acceptable settlement possible; and get out of Dodge.