Clausewitz on Trial: An Application of Military Strategic Thought to Litigation

摘要

Major General Carl von Clausewitz's contributions to the world were not displayed through brilliant military maneuvers on the battlefield, but rather through his thoughts inscribed on paper. Clausewitz published numerous writings based on his lifelong study of history and war, tracing 'the interaction of intention and planning with the realities of combat and psychology of the soldier,' and exploring 'the relationship of war to policy, politics, and society.' As 'war is a continuation of political activity by other means,' litigation is a continuation of human conflict by other means. In this regard, war and litigation share a similar relationship in conflict resolution-perhaps the type of relationship Clausewitz would have sought to explore and think about had he lived in the twentieth century age of litigation. Just as Clausewitz helps the Airman, Soldier, Sailor, Marine, and Guardsman think about war, Clausewitz also helps the trial counsel think about the practice of litigation--both inside and outside of the courtroom. The study of military strategy, theory and thought provides trial counsel an intellectual foundation from which to pursue their own ideas about litigation. This paper applies Clausewitz's thoughts and concepts as articulated in On War, originally published in 1832, to the practice of litigation in illustrating the value of military strategic thought for trial counsel in planning and executing a successful litigation strategy. This paper is divided into eight main sections. This first section compares and contrasts the nature of war and litigation; the next six sections applies Clausewitz's concepts of the remarkable trinity, psychological forces, friction and fog, attack and defense, decisive points, and culminating point of victory to litigation, and; the final section concludes the paper with a recommendation for judge advocates to include the study of military strategic thought in their respective trial advocacy training program.