The Army Lawyer | Issue 1 2021View PDF

null Using Red Team Techniques to Improve Trial Advocacy

A JA discusses strategy with the brigade staff at JRTC. (Photo credit: LTC Ryan Howard)

No. 4

Using Red Team Techniques to Improve Trial Advocacy

The panel files back into the courtroom. You try to read the members’ faces, but they are as inscrutable as ever. Your supervisor gives a reassuring nod from behind the bar. You are as confident as you can be. Your cross-examination of the other side’s key witness was devastating, your closing argument was incisive, your expert witness was compelling, and your evidence was flawless. You spent months preparing this case, and it paid off—everything from voir dire to closing instructions went according to plan. You don’t want to say you have this in the bag; but you know the case was yours to lose, and you worked too hard to lose it.

“Accused and defense counsel please rise.” Your heart hammers in your chest. All the late nights, rushed meals, and unhealthy levels of caffeine come down to this. The panel president begins to speak . . .

You lost.

As you feel the tension release from the lawyers on the other side, you sink into your chair, stunned. In the next minutes, hours, and even days, you and your team will ask yourselves and each other: “What went wrong?”

Try enough cases, and you will eventually lose one. Moreover, in an adversarial justice system that tries to get as close to objective truth as humanly possible, there is always one side that is supposed to lose.1 Still, while excellent trial advocacy may not be sufficient to win a losing case, poor trial advocacy can lose a winning case. And since we can never be sure why judges or panels make the decisions they do, you’re left wondering if you should have made a different argument or called a witness you did not call.

We learn from failure. If you have ever experienced a situation like that described above, you certainly learned from it. But can we learn from failure before it happens? Can we avoid the problems that arise when we rely on assumptions based on what is familiar? Can we make better decisions by combining intuition and experience with deliberate systems designed to avoid falling into bad habits? We can, through “a flexible cognitive approach to thinking and planning that is specifically tailored to each organization and each situation” known as Red Teaming.2 As the Red Team Handbook explains:

[P]eople court failure in predictable ways, by degrees, almost imperceptibly . . . we routinely take shortcuts because of limitations on time, personnel, or other resources, and we accept that as a normal way of doing business. We assume we understand situations because we have been in similar ones before, and we turn a blind eye to ambiguity or don’t fully appreciate asymmetries . . . . We make many small decisions that are individually “close enough,” but when joined together, become the seeds of failure.3

Does any of that that sound familiar? If it does, you are far from alone—military justice practitioners are as susceptible as anyone to these tendencies. Luckily, Red Teaming techniques can help you overcome them.

Developed by the U.S. Army’s University of Foreign Military and Cultural Studies, the purpose of Red Teaming is “to help us ask better questions, challenge explicit and implicit assumptions, expose information we might otherwise have missed, and develop alternatives we might otherwise have missed.”4 Red Teaming is built on four principles: self-awareness and reflection; fostering cultural empathy; groupthink mitigation and decision support; and applied critical thinking.5 The Army develops and uses Red Teaming to aid in making decisions in a variety of settings. Military justice practitioners can apply many of the same Red Team principles and techniques to improve trial preparation and advocacy.

Self-Awareness and Reflection

Military justice is not the place to reinvent yourself. If you are bellicose, be righteous. If you are soft-spoken, be compassionate. If you are stoic, be placid. Any personality can produce a winning advocacy style. But first you have to know yourself and understand why you are the way you are. When you are part of a team, you need to understand each other. And in the military, with our fast-paced work and relatively short assignment tours, we need to accelerate that understanding. Red Teaming can help us do that.

Try the technique “Who am I?” with the other attorneys and paralegals in your office.6 Ideally, you should do it as a new team forms (or when a team replaces or adds new members), but you can use it any time. First, each member of the group reflects on the “watershed moments” in their life and either writes or draws them on a sheet of paper.7 Then, they reflect on the meaning of these events and why they explain who they are today.8 “It is not an oral biography or resume, but rather an individual’s choice of life-changing events that [they perceive] changed the way they think—both negative and positive—to share.”9 Second, each participant takes a turn sharing with the group.10 Third, everyone else listens, without adding comments, suggestions, or reacting at all.11

Last, that same day, every participant reflects on their experience.12 During that reflection, experienced leaders on the team can help participants examine how their ways of thinking will impact their practice of military justice: How do they respond to adversity? How do they handle the unexpected? How do they react to setbacks? The goal is not to change core beliefs and personality traits, but to gain self-awareness. Court-martial litigation is the product of thousands of decisions—which theories to pursue or discard, which witnesses to call, which objections to make—made over the course of months or minutes, any one of which can affect the outcome of a case. These decisions are best made “by self-aware individuals who understand the characteristics of the self that would influence the end result.”13

Self-awareness includes the realization that “how we see ourselves (what we say and what we do) may be quite different from how others perceive us, and vice versa.”14 An inability to recognize this can account for significant failures in trial advocacy. A prosecutor believes that the alleged crime victim is sympathetic, but the panel sees them as opportunistic. A defense counsel believes their expert witness request is reasonable, yet the judge denies the motion to compel production.15 An attorney thinks their cross-examination was brilliant, but—to the panel—they just looked like a condescending jerk.16

To address this issue, we can use a tool called “n-Ways of Seeing.”17 The activity proceeds as follows: Take a piece of paper and divide it into a 4x4 grid; be sure to leave room for labels at the top and along the left side. On the top, write “How does . . .” and then label the columns “trial counsel,” “defense counsel,” “military judge,” and “the panel.” Along the side, write “See” and then label the rows the same way, in the same order. Next, fill in each block: how do trial counsel see themselves; how do defense counsel see the military judge; and how does the panel see the trial counsel. Use the actual examples from your installation—the defense counsel opposing you in the local Trial Defense Service (TDS) field office, the military judge who typically presides over your cases, the panel on your current convening order. You will—of course—have to rely on your own experience and observations, but try to assess the perspectives of each party as comprehensively as you can with the limited information you have available. For an example of how this could be filled out from the perspective of a hypothetical trial counsel, see Table 1.

After viewing Table 1, two things should be apparent. First, it is necessary to make a number of assumptions. Assumptions are a necessary part of making any decision. The danger of assumptions is treating them as fact; therefore, whenever possible, we should seek to confirm or disprove them rather than continuing to rely on them.18

The second thing you probably saw in Table 1 is that there are some controversial ideas on there. And, while the table is only a sample exercise drawn from a fictitious trial counsel, defense counsel, military judge, and panel taken to the extreme, that’s intentional. A key function of Red Teaming is making the implicit explicit. This document is for you (or, if you do it as a group, your team); not for anyone else.19 If you just write “defense counsel are zealous advocates for their clients” and “the military judge presides fairly and impartially,” you miss the point of the exercise, which is to confront our own biases and preconceptions. If you are a prosecutor who really thinks the judge is a defense hack and the defense counsel are underhanded, you need to be honest and put it on paper. If you are a defense counsel who thinks the trial counsel only care about convictions and not justice, write it down. Your actual chart may not be as extreme as these examples, but if you don’t feel uncomfortable at the end of this exercise, you probably did it wrong.

Now comes the hard part, where you confront your own thoughts and consider the reasons why you wrote what you wrote. To get at the root of some of these beliefs, we can use the “5 Whys” technique.20 Familiar to any parent of small children, this exercise is as simple as its name: Ask the question “why” at least five times, to get at the root of a problem, symptom, or belief.21 Apply this to all, or at least the most significant, of the beliefs you wrote. Start by asking “Why does ___ see ___ as ____?” and then ask successive questions based on your answers. If you cannot sustain reasonable answers for at least five questions, you may have uncovered a baseless assumption, or at least one you can’t confirm. For example, if your only reason that defense counsel see “enlisted are best” is because their clients usually choose enlisted panels over officer panels, you can’t get deep enough to confirm that assumption.22

If you find yourself circling back, use a “how” question to change perspective. Here is an example of how one of the more controversial postulations in Table 1 might play out:

  1. Why do we see the judge as a defense hack? Because he used to be in TDS.
  2. Why does service in TDS mean he’s a defense hack? Because he’s sympathetic to them.
  3. Why is he sympathetic to them? Because he lets them file motions after the deadline.
  4. Why does he let them file motions after the deadline? Because he favors TDS.
  5. How else do out-of-time motions mean the judge is a defense hack? Because he doesn’t want to get overturned on appeal.
  6. Why doesn’t he want the case to get overturned on appeal? Because he doesn’t want to try the case over again.
  7. Why do we want to try the case over again? Umm . . . we don’t.

Table 1. Sample 16-Ways of Seeing Chart

See . . .

How Does . . .

Trial Counsel

Defense Counsel

Military Judge

The Panel

Trial Counsel

  • White hats
  • Voice of command
  • Seeking to do justice
  • Aggressive
  • Obstructionist
  • Unsmpathetic
  • Unreasonably aggressive
  • Tiresome, especially with issues of evidence production
  • The white hats
  • The same as the JAG guys who give them advice

Defense Counsel

  • Underhanded
  • Uncompromising
  • The heroes
  • The only ones standing up against injustice
  • Sympathetic
  • Defending wrongdoers
  • Obstacles to commanders’ intent
  • Necessary part of the system

Military Judge

  • Defense hack
  • Worried about being overturned on appeal
  • Hard during sentencing
  • Likely to do what they want
  • Fair-minded
  • Impartial
  • In control
  • In charge

The Panel

  • Unsophisticated
  • Unable to follow nuanced instructions
  • Unable to follow nuanced instructions
  • Enlisted are best
  • Company men/women
  • Need to be accommodated
  • Pro-government
  • Fair-minded
  • Want to do the right thing
  • Efficient

In this case, the “5 Whys” may have changed your perspective—maybe the judge seethes at every late filing from the defense, but begrudgingly allows it to protect the record from appellate reversal due to ineffective assistance of counsel, or maybe they’re out to make sure the accused gets a fair trial despite their counsel’s tardiness. Perhaps they’re not in the defense’s corner as much as you initially thought. Remember, this is also an assumption, but it at least expanded your perception to allow for alternate explanations instead of your first intuitive answer, and maybe you will modify your approach accordingly.23

This is an example of how framing affects our perceptions. When you look out the window of your house, you cannot see everything in your yard—the window limits what you see. Our minds work the same way. “Frames are mental structures that simplify and guide our understanding of a complex reality.”24 Mental frames are necessary to focus our attention and guide our decisions without becoming overloaded by information.25 But frames also distort what we see. To us, they appear complete; they are themselves hard to recognize, and they can be hard to change.26 Being self-aware includes being aware that our frames limit our thinking.

What about the panel members? They almost certainly start out seeing the case differently than you do, but your entire case presentation is aimed at getting them to adopt your frame—your view of the case. In order to do that, you need to shift their frame to accommodate your view, either by stretching their existing frames or giving them a new one.27 But, before you can do that, you need to identify the contours of their frame and help them do the same.

Voir dire is an excellent, and often under-utilized, opportunity to identify the panel’s frame, help them to acknowledge it, and then start to stretch it. Using voir dire as a venue to ham-handedly inject your theory of the case misses the point and the opportunity.28 Instead, use voir dire for its exact purpose—to identify bias.29 You probably cannot get there with the twenty-eight generic questions the military judge asks; and leading, single-answer questions like “would you agree that cops sometimes lie?” are not much better.30 The point is to make the implicit explicit, just like you did with yourself in the “16-Ways of Seeing” exercise—“make [the panel] aware of their underlying beliefs.”31

You cannot undo a person’s core beliefs crafted over a lifetime with just a few minutes of questioning, but you can at least get them to acknowledge them—to identify the contours of their frame.32 Then, you can help the members confront their frame and stretch it. As then-Lieutenant Colonel Eric Carpenter explained it: “describe those belief systems (describe the 800-pound gorilla), and then have the panel members find reasons why those belief systems are sometimes unreliable (have them find some swords) so they can kill the gorilla.”33

For the defense counsel, you can start with: “Who would like to hear [name of the accused] testify?” Even though the judge told them they can’t hold it against your client if he doesn’t testify, asking a question non-judgmentally is likely to get a more honest answer.34 Get the members to acknowledge the natural inference of guilt that comes from silence—and then stretch the frame by asking, “What are some reasons someone might not want to testify even if they’re innocent,” drawing out examples like “they’re nervous” or “they’re worried their words might get twisted.”35 Thus, instead of burning any panel member brave enough to honestly admit the natural inference that silence equals guilt, you’ve given the entire panel pause and helped them understand why the law instructs them contrary to their natural inferences.

For a prosecutor, you can do something similar with common counterintuitive victim behaviors:

If your victim placed [themselves] in a risky situation, particularly by [their] own voluntary drinking, then you need to address this assumption of risk. You might first ask, “If a [victim] does X, Y, and Z, do you think [they] assume[] some risk in what might happen to [them]?” Wait. You will probably get several people who agree. Ask why they think that way. Describe the 800-pound gorilla. The next step is to see if they think that because [the victim] assumed some risk, the offender might be less culpable. Ask, “Well, if someone gets really drunk and stumbles out of a bar, they have placed themselves at risk of getting mugged. If someone does mug them, do we let the mugger go because the victim was drunk?”36

When you began, you were forced to make some assumptions about the panel’s frame—maybe you believe medical officers will give more weight to medical experts, female panel members will judge female victims more harshly, et cetera. Instead of stumbling through a timid voir dire that just skirts the facts of your case, use it to explore these assumptions and make the implicit explicit. Find the contours of the panel’s frame and help them see their frame as well. Then give them the tools they need to stretch it so that it can accommodate your frame, which you’re about to show them in your opening statement.

This all begins with knowing yourself and striving to understand how others may see themselves and you. If you think critically about your frame and others’ frames, you will be better-positioned to negotiate with opposing counsel and advocate to the court. You can aid yourself in that endeavor by increasing your cultural empathy.

Red Teaming focuses on fostering cultural empathy in support of operational decision-making, as “part of the larger intellectual process of warfighting and peacekeeping.” Red Team cultural training focuses primarily in the subject areas of social structure, politics, economics, and religion, in order to “understand the nature of the whole.”

Fostering Cultural Empathy

Red Teaming focuses on fostering cultural empathy in support of operational decision-making, as “part of the larger intellectual process of warfighting and peacekeeping.”37 Red Team cultural training focuses primarily in the subject areas of social structure, politics, economics, and religion, in order to “understand the nature of the whole.”38 Examining the culture of other societies does not have a ready application to military justice except in unusual cases (e.g., a war crime trial). However, the military justice system reflects the interactions between thousands of decisions made by humans, all of whom are impacted by their respective cultures. Thus, as military justice practitioners, we would do well to turn our gaze inward and reflect on the cultures of our clients—the national culture, the Army culture, and their many overlapping subcultures.

Red Teaming teaches that culture 1) is learned, 2) is shared, 3) changes over time, and 4) is not always rational to outsiders.39 Every panel member, every accused, most investigators, and many witnesses all come from the Army and have been assimilated into the Army culture to varying degrees. Yet, even within the Army, we have many different subcultures. The fourth point, “not always rational to outsiders,” can sometimes cause a frame mismatch between judge advocates and other Soldiers.

The Judge Advocate General’s (JAG) Corps, with its separate systems for accessions40 and training, along with our unique statutory roles inside the military organization,41 has different exposures to the broader Army culture and its subcultures (different frames) than other parts of the Army. As such, we sometimes fail to empathize with them. Think back to your “16 Ways of Seeing” chart, and consider how that fictitious trial counsel and defense counsel viewed the panel. Why might a trial or defense counsel characterize the panel as “unsophisticated” or “unable to follow nuanced instructions?”

A useful general framework for studying culture is the Hofstede’s Onion Model shown in Figure 1.42 Fill out the chart with your understanding of Army culture. Symbols may be “uniforms, insignia, and salutes”; rituals may be “ceremonies [and] formations”; and values might be “order, discipline, loyalty, duty, respect, honor”; et cetera. It was probably not too difficult even if you have not been in the Army for long. Now do it again, but focus on the culture of your particular unit or installation. Do you see any additions or differences? Maybe you wrote “attention to detail” in values for an aviation unit, or “team players” as practices for an organization of logisticians. When you consider your panel’s frame, consider how these overlapping layers influence it.

Perhaps you are a prosecutor trying a case of prohibited activities with a trainee43 before a panel with a background in artillery and fires. Your theme may be that the accused saw the victim as a “high payoff target.”44 If someone on your panel has served as an inspector general, you—as a defense attorney—could surmise that they value their role as the “conscience” of the command.45 Maybe your theory of the case allows you to remind them in closing argument of their oath to try the case “according to the evidence, your conscience, and the laws.”46

We broaden our cultural understanding with experience and interaction with others. Even if you have not been in the military for long and have spent little time in operational units, you can gain insights into Army culture. After a trial, ask the bailiffs for their thoughts.47 They sit quietly, hearing the same evidence as the panel, they are lay Soldiers drawn from the same populations as the panel, and they have no personal stake in the outcome.48 They may have a valuable perspective on how your presentation of the case was received. Another source of understanding is our paralegals. By virtue of their training and utilization, paralegal Soldiers are often more immersed in the larger Army culture, as well as the subcultures of their respective units, than judge advocates, particularly military justice practitioners. They understand “enlisted culture” and “NCO culture” better than most officers do. They may have keen insight into how the panel will respond to a particular theory or witness, and they are indispensable when practicing your opening statement and closing argument.

The Red Team approach to culture is not revolutionary; it is merely a deliberate, functional, and systematic approach to assessing culture.49 It helps “avoid spurious correlations and conclusions.”50 Culture is a useful shortcut and starting point for assumptions, but is not a source of predictive conclusions.51 Cultural empathy recognizes that “[i]nstitutions [like courts-martial] can be engineered to perform a function, but the [environments] outside of institutions are more complex.”52 As military justice practitioners, we seek to perfect our understanding of military culture “to communicate well,” “to set reasonable objectives,” and “to correctly time actions and activities.”53 In other words, we use it to aid in presenting our case. By thinking deliberately and systematically about how the culture impacts the institution, we can make better decisions about how we will engage that institution to achieve our goals. In order to do that effectively, we must think critically and mitigate the effects of groupthink.

Groupthink Mitigation

Trying to prepare an entire case by yourself is a doomed endeavor. There is simply too much work. Moreover, if you try to do it yourself, you are almost certainly going to miss a significant aspect of your case. We know this, and the collaboration in most JAG Corps military justice and trial defense offices is first-rate. Working as a team brings “varied experience, knowledge, and perspectives” to bear on solving a problem.54 However, these benefits are lost if the group succumbs to groupthink. Groupthink mitigation works in tandem with applied critical thinking to help us make more sound decisions.

“Groupthink” is a “mode of thinking that people engage in when they are deeply involved in a cohesive in-group, when the members’ strivings for unanimity override their motivation to realistically appraise alternative courses of action.”55 As judge advocates, our multiple accessions systems foster a diverse corps,56 but we still remain susceptible to groupthink. We are self-selected Army officers who are trained by the same institutions (which are themselves staffed mostly with the individuals they once trained). Even expanding the team to include our paralegals (an absolute necessity), we intentionally cultivate a strong group identity. As such, our shared culture and similar frames amplify the natural “human affinity for grouping and hierarchy,” which can lead us into trouble.57

The forming of a group can immediately create an “us-against-them” mentality. This leads to both an often-unfounded sense of moral and intellectual superiority for group members and a sense of pressure toward conformity and uniformity for members. . . . [T]his pressure artificially drives group members to agree on a single line of reasoning. It also impacts the group’s perception of adversaries by assuming they have the same level of group conformity.58

This “us versus them” mentality is even stronger when we are placed into structurally adversarial roles (i.e., prosecutors and defense lawyers). In your “16-Ways of Seeing” chart, when you look at your assessment of the opposing side—and vice versa—can you see any indications of “sense of moral and intellectual superiority,” or an assumption “they have the same level of group conformity”? When you receive a motion or filing from opposing counsel, what is your immediate visceral reaction? This adversarial relationship triggers our instinct to band together, which makes us more susceptible to groupthink.

Another issue with groupthink, especially acute in the military, is the inhibition of hierarchy, where people are unwilling to directly challenge “the boss.”59 Thankfully, despite the inherent rank structure of the military, most court-martial trial teams do not suffer from this dilemma. Nonetheless, chiefs of justice, senior defense counsel, and other leaders should be on guard against this tendency.

More frequently, military justice practitioners are prone to the “everyone knows” phenomenon, where more experienced group members relying on past experience inadvertently discourage questions or alternate viewpoints. Reflect on your own experience, whether as a prosecutor or defense counsel. As a prosecutor in a sexual assault case, when a victim has relevant post hoc behavior, do you immediately seek out a counterintuitive behavior expert? As a defense counsel, do you react to notice of expert witness from the prosecution by immediately requesting an expert in the same subject before considering whether that is even necessary to your theory of the case? Both of these are predictable “go-to” moves from the prosecution and defense playbooks; after all, “everybody knows” that’s the play you run when you are faced with this situation.

Groupthink inhibits our critical thinking about these common practices. If you think you need an expert for a specific case, start with the question, “Why do we need this expert?” and complete the “5 Whys” exercise—see what you learn. Using the example of a counterintuitive behavior expert for the prosecution, you may realize that you’ve made three assumptions: 1) the panel suffers from the bias the expert aims to address; 2) you can’t “kill that gorilla” by shifting their frame in voir dire or in argument; and 3) the expert can effectively change their minds. Without challenging these assumptions,60 you run the risk of boring the panel with hours of testimony that doesn’t move the needle, or worse, breeds resentment among members who are thinking, “We all agreed in voir dire that victims can behave differently, so why are we listening to this?”61

One of the most important functions of Red Teaming is identifying the correct problem. If we do not fully understand the problem, we risk developing a solution to the wrong problem.

Red Teaming provides several tools to mitigate groupthink and encourage creative and critical thinking within organizations. You did a variation of one of already in the “Who am I?” exercise, called “Circle of Voices.”62 This technique is great for complex, open-ended issues like developing your case theory and theme. In “Circle of Voices,” each member of the team gets a chance to speak uninterrupted, and nobody can speak twice until everyone has spoken at least once.63 Begin with a period of silence, giving everyone an opportunity to think about the issue, and then give each person a turn of “uninterrupted airtime” (with a reasonable limit on length).64 While each person speaks, the others in the group listen actively without expressing any reaction—including crossed arms, eye rolls, sighs, nods of agreement, knowing grins, et cetera. To further mitigate against hierarchical intimidation, consider going from the most junior to most senior member of the team. Once everyone has had their turn, open the floor to a free discussion.65

A variation of the “Circle of Voices” is called “Yes, And.”66 Have you ever had a discussion with someone pre-disposed to disagree with you? In those conversations we are often not really listening to what the other person says; we’re waiting to respond with the phrase, “Yes, but . . .” to make our own counter-argument.67 The “Yes, And” technique reverses that tendency by facilitating more respectful dialogue.68 In this technique, the participants build off of each other’s ideas. The group (ideally three to four members, but no more than six) sits in a circle and begins by writing down their individual thoughts.69 Person A then shares their idea.70 Person B embellishes Person A’s idea by beginning their turn with, “Yes, and . . .” Continue clockwise or counterclockwise until everyone has added something to Person A’s idea.71 Then, Person B shares what they wrote down, and the group takes turns around the circle with everyone adding something to Person B’s idea.72 Continue until everyone has contributed something to everyone else’s idea.73

Another technique is “1-2-4-Whole Group” (or, in smaller groups, just “1-2-Whole Group”).74 This is useful “when a group needs to critically review an issue of importance, seek new solutions or approaches to a problem, highlights the vast range of views that surround a certain issue, or hear ideas/solutions from all individuals.”75 It works in iterations. Begin with a “well-defined” question.76 This can be an open-ended question or a more binary choice like “should our client testify?” After receiving adequate time to reflect on the question, each person “pre-commits by writing down their answer or idea before they have heard from or been influenced by any other participant.”77 Then, each member finds a single partner to discuss, sharing feedback and adding refinements, developing new ideas, or merging ideas together.78 After that, each pair joins with another pair, and then the group comes together as a whole.79 In the whole group, “discuss insights discovered during the process . . . [including] new discoveries, novel solutions, and an understanding of how [members’] view of the issue has changed.”80 This way, everyone’s input is considered.

As discussed above, reality requires us to make decisions initially based on assumptions. The danger is when we make assumptions without realizing we’ve done so. The technique of “Devil’s Advocacy” is useful “to help expose implicit assumptions and faulty reasoning.”81 It has three steps. First, take your position and state the opposite—for example, “the sexual encounter was consensual” or “our client did not act in self-defense.”82 Second, examine the evidence you already have and identify what evidence supports that proposition.83 Third, consider what additional evidence could make that proposition true, and see if you uncover it.84 Based on that analysis, act appropriately going forward, consistent with your ethical responsibilities to do justice or advocate for your client’s interests.

Groupthink mitigation is necessary to aid in both creative and critical thinking. Military culture tends to inhibit creative thinking, due to “time pressures, hierarchical structures, emphasis on uniformity and training standards, and a predilection for risk avoidance.”85 Many of these same influences also cause us to “make unfounded assumptions, take mental shortcuts, and allow biases to hijack logic,” which can impede critical thinking. 86 Groupthink only makes these problems worse. Since military justice litigation is a team endeavor, the team leaders need to mitigate the effects of groupthink in order to successfully apply critical and creative thinking to make sound decisions.

Applied Critical Thinking

As used in Red Teaming, applied critical thinking is “the deliberate process of analyzing and evaluating the way we perceive and interpret the world around us, performed to improve our understanding and decision making.”87 The term is exactly the “sum of the words”—being critical of the way we think, and applying that critical approach to making better decisions.88

Applied critical thinking helps us resolve the dilemma of “not enough time.” When we have limited time (or we convince ourselves that we have limited time), we tend to make decisions intuitively, on “cognitive autopilot,” taking mental shortcuts and making decisions based on what is easy or familiar.89 “[W]e react to time constraints by settling, accepting a solution as good enough.”90 The applied critical thinking techniques of Red Teaming train us to think critically even in time-constrained environments, so that “where shortcuts are required, we can learn to use better ones.”91

The Red Team framework for applied critical thinking in conjunction with groupthink mitigation is “Divergence-Convergence.”92 It is useful “[d]uring decision support activities for any particularly complex, important, or polarizing issue”93—which litigation presents by the dozen. Begin by describing the situation, then diverge by capturing as many ideas as possible without stifling creativity.94 “Circle of Voices” works well for this step.95 Then, debate. At this stage, you combine and aggregate similar ideas while eliminating those that are impractical or inappropriate.96 Finally, you converge, “narrow[ing] to find the most viable solution.”97 During debate and convergence, tools like the “5 Whys” and “1-2-4-Whole Group” help guide the narrowing process while avoiding groupthink and maintaining a critical focus. Figure 298 depicts the process.

Note that the starting point is identification of the problem. One of the most important functions of Red Teaming is identifying the correct problem. If we do not fully understand the problem, we risk developing a solution to the wrong problem. “When presented with problems, we often define them too broadly, focus on only part of the issue, or make invalid assumptions. As a result, we identify and settle on solutions too quickly.”99 When a thousand-page casefile lands in your inbox with what appear to be nothing but bad facts, you may struggle just to comprehensively define the problem.

Usually, problems arise from “facts beyond change.”100 If your client lied to the police, you cannot change that. If the alleged victim also committed misconduct, you cannot change that. Your case strategy needs to account for these facts.101 But be careful of identifying the problem too quickly. Sometimes the facts beyond change or “bad facts” of your case are only symptoms of a deeper root issue. Make sure you solve the root problem, not the symptom.

Beware of problem statements that are “misdirected, too narrow, too vague, or lack focus.”102 For example, “how do we win our case” doesn’t identify a real problem. “How do we get the panel to believe our witness” is too narrow and assumes a solution. “How do we get the judge to let us talk about prior sexual history” is unfocused. Identify the real obstacles and their root causes.

In some cases, a “double diamond” technique is useful to identify and solve a problem. Effectively, we diverge and converge twice: first we diverge and then converge on a problem statement, next we diverge and converge again on the solution.

Another, more abbreviated technique to ensure we solve the right problem is “Problem Restatement.”103 When a problem “seems tidy and straightforward,” any of the following creative techniques can help us to reexamine the problem and increase the chances of reaching the best solution:104

  1. “Paraphrase the problem statement. Restate it using different words without losing the original meaning.”105 For example, “How do we show our client acted in self-defense?” may become “How can we show our client had a reasonable apprehension of harm even though they struck first?”106
  2. Restate the problem in an opposite manner, similar to Devil’s Advocacy.107 For example, “How do we prove this was sexual assault?” may become “How does the evidence establish consent?”108
  3. “Expand the view. Restate the problem in a larger universal context.”109 For example, “How could they have access to the supply room?” might become “What was happening in the unit at the time of the robbery?”
  4. “Redirect the focus.”110 For example, “Should our client testify?” may become “How will the panel react if our client testifies?”
  5. Employ the “5 Whys” technique, starting with rephrasing the original problem statement as a “why” question.111 For example, “How do we overcome the fact that they had a consensual relationship?” could start with, “Why would the victim continue their relationship with the accused after the accused assaulted them?”

Groupthink mitigation and creative thinking will serve us well in divergence, but groupthink and other intuitive shortcuts will still prove tempting during convergence. Therefore, to avoid those pitfalls, Red Teaming gives us several applied critical thinking and groupthink mitigation techniques geared toward convergence.

When a complex or uncertain situation can unfold in multiple ways, an “Alternative Futures Analysis” helps plan for multiple possible outcomes.112 It consists of identifying the “two most critical and uncertain” factors of an issue and forming a matrix to characterize and anticipate the outcomes depending on how those factors combine.113 In most trials, if you are prepared, the presentation of evidence will play out mostly as you anticipate. But there are usually one or two major uncertainties for which we need to prepare as best we can.

For prosecutors (and occasionally for the defense as well), one significant uncertainty is often “Will the accused testify?” Most prosecutors will prepare some form of a “branch plan” to react if the accused takes the witness stand, including cross-examination and possibly rebuttal evidence.114 Another common dilemma for trial counsel is whether to charge an “exculpatory no” as a false official statement.115 If the accused changes their story, for example, first telling law enforcement “we never had sex,” then later admitting “we had sex,” they have committed a crime. But, usually, the accused makes exculpatory statements with a revision; for example, “we had sex and it was consensual.” In this situation, the prosecution has a choice. By placing false official statement on the charge sheet alongside the principal accusation in the case, the prosecution is more likely to obtain at least one conviction, and perhaps the members discount the defense theory of the case based on the internal contradiction within the statements. On the other hand, the evidence that proves the charge also tells an exculpatory version of events—allowing the defense to get their story out through the prosecution’s own evidence thanks to the rule of completeness.116

Imagine you are a prosecutor deciding whether to charge an “exculpatory no.” You can make an “Alternative Futures Analysis” chart to assess the different outcomes depending on both the variables described in the preceding paragraph. In this case, the y-axis is whether the accused testifies and the x-axis is whether the prosecution charges the “exculpatory no” as a false official statement. Fill in each quadrant with possible outcomes depending on the interaction of those two variables. Perhaps you can employ the “Circle of Voices” or “Yes, And” techniques to fill them in.

Within ethical boundaries, the government has near-total control over whether to charge false official statement and no control over whether the accused testifies. By thinking critically about the various alternatives during divergence, you can make a sound charging decision in convergence. (And over in the Trial Defense office, the defense team is probably assessing whether or not it would be advantageous for their client to testify, depending on how you charge them.)

Another technique useful at any stage in planning, or even during a break in an ongoing trial, is the “Key Assumptions Check.”117 As discussed before, assumptions are a necessary part of planning, but “[f]lawed assumptions will quickly waste time and efforts.”118 Furthermore, “hidden assumptions . . . are often ideas unconsciously held to be true, and therefore are seldom examined and almost never challenged.”119 A key assumptions check helps us to challenge the logic of our assumptions and acknowledge the conditions under which they might change.120

Begin by identifying a fundamental decision and writing down the current “analytical line”—your current position.121 Then, write the key assumptions that must be true for that analytical line to be valid.122 Next, challenge each assumption by asking:

  1. Why must it be true?
  2. Does it remain valid under all conditions?
  3. How much confidence exists that this assumption is correct, and what explains this degree of confidence?
  4. What circumstances might undermine this assumption?
  5. Is this assumption most likely a key uncertainty or key factor?
  6. Could this assumption have been true in the past but false now?
  7. If the assumption proves to be wrong, how does it significantly alter the analytic line?
  8. Has this effort identified new factors that need further analysis?123

Imagine you are on a defense team deciding how to advise your client on selecting the forum for sentencing.124 Your starting position (analytical line) is that the enlisted panel you plan to select for findings will also be the best forum for sentencing. Now, write down all of the assumptions that make that true. Perhaps your theory of the case is that your client just made an immature decision, and you assume the enlisted members of the panel will remember what it is like to be a young, immature junior Solider. Part of your analytical line includes an implicit assumption that the military judge would sentence your client more harshly than the panel. Write that down.

Now challenge your assumptions. For this example, we’ll focus on the second assumption, that the military judge would treat your client more harshly:

  1. Why must that be true? Because enlisted panel members remember what it is like to be young and immature, and this judge was never enlisted. Also, our client’s service record would be stronger mitigation before a panel of combat veterans. 125
  2. Does it remain valid under all conditions? If he’s convicted of only a minor offense, we may change our assessment—since a divided panel may acquit on some things but then sentence him hard on what’s left.
  3. How confident are you that the assumption is correct, and why? Not really, just based on past courts-martial and the way this judge has sentenced.
  4. Could this assumption have been true in the past but false now? If the panel convicts him of everything, and we think they’re out for blood, they’re less likely to be lenient.

The next question is, “If this assumption proves to be wrong, how does this affect the analytic line?” Unfortunately, there’s no way to know this one—after the military judge says “you may be seated” and sends the panel members back into the deliberation room, your client has to make a decision. But now you have identified some factors that could change your initial assumptions while you still have the time to think critically about that decision, and you won’t be relying solely on intuition when the time comes.

When you have nearly finished trial preparation, you should have a trial plan built on sound decisions, reasonable assumptions, and clear frames. That is a dangerous moment. “People can become overconfident once they have arrived at their plan.”126 It is an ideal time for “active inquiry aimed at foiling trouble,” known as “Premortem Analysis.”127 “Premortem Analysis” is a self-contained iteration of “Divergence-Convergence” with elements of “Devil’s Advocacy,” to “question a course of action and its assumptions/tasks.”128

Gather your team together. Everyone on the team, paralegals included, must know the plan.129 Now, imagine the plan failed—assume you lost the case—and reflect on that for a few minutes.130 Pose the question to the group, “Why did we lose?”131 Have everyone write down their thoughts. Then, as a group, use techniques like “Circle of Voices,” “1-2-4-Whole Group,” or other divergent techniques to make a list of possible explanations.132 Finally, revisit the plan, look for ways to address the sources of failure that you identified, and converge on remedies.133 Keep the list in mind as you proceed to trial.134

Self-awareness and groupthink mitigation set the conditions for us to use applied critical thinking. Applied critical thinking forces us to examine not just the questions and problems, but the manner in which we address those questions and problems. It helps us work through our intuitions and biases. The more we use applied critical thinking to guide our decisions during preparation, when we are calm and have the time to work systematically, the less we will be surprised at trial. Moreover, if we practice critical thinking as we build the plan, we will make better decisions in the heat of the moment when we’re on our feet in the courtroom and have to react to the unexpected.

The more we use applied critical thinking to guide our decisions during preparation, when we are calm and have the time to work systematically, the less we will be surprised at trial. Moreover, if we practice critical thinking as we build the plan, we will make better decisions in the heat of the moment when we’re on our feet in the courtroom and have to react to the unexpected.

Conclusion

Red Teaming can help us make better decisions in military justice. To make sound decisions, we have to overcome our natural cognitive instincts. Thinking slowly and deliberately takes effort, which is why our minds are wired to use shortcuts of experience and intuition.135 When we feel overwhelmed by complexity or pressured by time, this tendency only increases.136 Even when we dedicate time to sit down, clear our heads, and intentionally focus on the problem at hand, our minds are always looking for the shortcuts that let us validate our initial impressions and accept what we are already inclined to accept.137

Some of the techniques described in this article probably seem similar to approaches you already use and may get to the same results you would get just by relying on your experience and intuition. We should not disregard experience or suppress intuition; both are essential to decision-making in trial advocacy and in everyday life. But we need to understand their limits when applied to complex work like court-martial litigation. Red Teaming allows us to avoid taking the intuitive shortcuts that can lead to less optimal decisions.

Avoid saying “there’s not enough time” to apply formal techniques. Train our paralegals in the Rules for Courts-Martial and the Rules of Evidence to increase the value they add to the team. Resist the lure of convincing yourself “it’s too hard.” In the end, formal techniques take less time and produce better results than aimlessly floundering about looking for a solution to an ill-defined problem. Stick with a deliberate process even when you think you already know the answer, because the difference between an 85 percent solution and a 90 percent solution (you will never completely eliminate all uncertainty) may be the difference between winning and losing your case. Moreover, if you are deliberate and thorough in preparation when you have the luxury of time, you will be better positioned for when you have to react quickly and make immediate decisions in trial.

Fundamentally, trial advocacy is about making decisions. In every case, we make thousands of decisions, some easy and some difficult. For some, we have the luxury of months, while others we have to make in seconds. All of them have the potential to be consequential.

Even the most prepared lawyers with the best-litigated cases will sometimes lose. Red Teaming is not a silver bullet and Red Teamers do not claim to have all the answers—Red Teaming is about getting closer to the answers through clearer understanding and alternate ways of thinking. It facilitates challenging assumptions, analyzing problems without relying solely on what is easy and familiar, and identifying causes of failure before it happens. Red Team techniques yield “improved understanding, more options generated by everyone (regardless of rank or position), better decisions, and a level of protection from the unseen biases and tendencies inherent in all of us.”138 Military justice practitioners can and should take advantage of these benefits. If they do, while they can never be certain why a particular trial ended the way it did, they can rest assured knowing it was not for lack of effort and preparation on their part. TAL


Lieutenant Colonel Robert Murdough is a complex litigation attorney with the Trial Counsel Assistance Program at Fort Belvoir, Virginia.



Notes

1. See also Larry Pozner & Roger J. Dodd, Cross-Examination: Science and Techniques 4 (3d ed. 2018) (“Cases come with good facts and bad facts . . . no set of techniques can make every case into a winning case. Go easier on yourself. Winning and losing are not the only measuring sticks of real trial lawyers.”).

2. U.S. Dep’t of Army, The Red Team Handbook 3 (9th ed. 2020) [hereinafter Red Team Handbook].

3. Id. at 2-3 (citing Dietrich Dörner, The Logic of Failure: Recognizing and Avoiding Error in Complex Situations 10 (Metropolitan Books 1996) (1989)).

4. Id. at 3.

5. Id. at 3-5.

6. Id. at 210-11. This technique is valuable both as a team-building exercise and a tool to build individual self-awareness. Id.

7. Id. at 210.

8. Id.

9. Id.

10. Id. at 211.

11. Id.

12. Id.

13. Id. at 8.

14. Id. at 17.

15. Cf. Manual for Courts-Martial, United States, R.C.M. 703(d) (2019) [hereinafter MCM] (establishing standards and processes for employment of expert assistance).

16. See Pozner & Dodd, supra note 1, at 4 (“We often [cross-examine] with inadequate focus. We term everything we ask as cross, when in fact too often we are engaged in discovery, sarcasm, one-upmanship, or simply argument.”).

17. Red Team Handbook, supra note 2, at 79-80. The handbook refers to this technique as 4-ways of seeing (2x2), but it can be scaled as needed, e.g., 9-ways of seeing (3x3), 16 ways of seeing (4x4), etc. Id.

18. Seeking to disprove assumptions, rather than only looking to confirm them, applies strong critical thinking. See infra notes 88-91 and accompanying text.

19. For that reason, it is best to destroy the records once you have completed the exercise. The point is to move beyond bias and stereotypes, but you have to honestly acknowledge them first. Out of context, they could produce significant misunderstanding.

20. Red Team Handbook, supra note 2, at 81-82.

21. Even if you did the n-ways of seeing activity individually, it may be helpful to do this exercise in a small group.

22. Also keep in mind that the selection of court-martial forum belongs to the accused, not the defense counsel. See MCM, supra note 15, R.C.M. 903.

23. It is also conceivable that delving deep enough will uncover legitimate bias on the part of the judge, which would form the basis for a challenge. See MCM, supra note 15, R.C.M. 902 (discussing challenges to the military judge). If this is the rare case where a challenge may be appropriate, you will be far better positioned to support your challenge having done the necessary critical analysis rather than providing a superficial reason like “they always rule against us in motions.” Cf. United States v. Loving, 41 M.J. 213, 253 (C.A.A.F. 1994) (citing Liteky v. United States, 114 S. Ct. 1145, 1157 (1994)) (holding that a military judge’s alleged “track record” of ruling for the government in prior cases did not indicate pro-government bias).

24. J. Edward Russo & Paul J.H. Schoemaker, Winning Decisions: Getting It Right the First Time 21 (2001).

25. Id. at 22-23.

26. Id. at 23.

27. Id. at 49-55.

28. Lieutenant Colonel Eric R. Carpenter, Rethinking Voir Dire, Army Law., Feb. 2012, at 5, 7. Keep in mind, the military judge controls the scope and form of voir dire. MCM, supra note 15, R.C.M. 912(d). Thus, be prepared to articulate how your proposed questions or style of questions will uncover bias and further the goals of voir dire and are not a less-than-subtle attempt to pre-commit the members to your theory of the case.

29. See MCM, supra note 15, R.C.M. 912(f)(1)(N); United States v. Bragg, 66 M.J. 325, 327 (C.A.A.F. 2008) (“The purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel.”).

30. Carpenter, supra note 28, at 7 (“Of course they know that cops sometimes lie. What they want to know is, did a cop lie in this case. And they want to wait until they hear the case to deal with that issue.”).

31. Id. at 8.

32. Id. at 9.

33. Id. at 8.

34. Id.

35. Id. Optimally, the military judge will allow open-ended questions in group voir dire, but you will have to tailor your approach to the expectations of your particular military judge. By thinking critically and deliberately about how you plan your voir dire, you will be better-positioned to advocate for why open-ended questioning will further the purpose of voir dire and will not taint the panel.

36. Id. at 9.

37. Red Team Handbook, supra note 2, at 37.

38. Id. at 27.

39. Id. at 24.

40. See U.S. Dep’t of Army, Reg. 601-100, Appointment of Commissioned and Warrant Officers in the Regular Army para. 2-8 (21 Nov. 2006) (providing the various means of accessions into the JAG Corps, including “Direct commissions to qualified civilians”).

41. See generally UCMJ art. 6 (2017) (protecting the role of judge advocates in their relations with commanders); UCMJ art. 37 (2019) (protecting the independence of judge advocates acting on behalf of their clients); 10 U.S.C. § 7037 (establishing the role and duties of The Judge Advocate General of the Army).

42. Red Team Handbook, supra note 2, at 28 (citing Geert H. Hofstede and Gert Jan Hofstede, Cultures and Organizations: Software of the Mind: Intercultural Cooperation and Its Importance for Survival 8 (3d ed. 2010)).

43. See UCMJ art. 93a (2019).

44. Cf. U.S. Dep’t of Army, Techniques Pub. 3-60, Targeting glossary-3 (7 May 2015) (defining high-payoff target as “[a] target whose loss to the enemy will significantly contribute to the success of the friendly course of action”).

45. U.S. Dep’t of Army, Reg. 20-1, Inspector General Activities and Procedures paras. 1-4.a.(2), 1-7.e.(1) (23 Mar. 2020).

46. MCM, supra note 15, R.C.M. 807(b)(2) discussion (emphasis added).

47. Note that, during trial, bailiffs may not discuss “the testimony of witnesses or the happenings within the courtroom.” U.S. Army Trial Judiciary, R ules of Practice Before Army Courts-Martial app. C, para. 2.j. (1 Dec. 2020).

48. Id. r. 31 (“[A] bailiff should neither have an interest in the case nor a close association with the accused or an alleged victim of a charged offense”).

49. Red Team Handbook, supra note 2, at 37-38.

50. Id. at 37.

51. Id. at 38.

52. Id. at 34.

53. Id. at 38-40 (citing Geoffrey Demarest, Winning Irregular War 153-54 (2014)). See also Geoff Demarest, Winning Irregular War: Conflict Geography (2017).

54. Id. at 51.

55. Irving L. Janis, Groupthink: Psychological Studies of Policy Decisions and Fiascoes 9 (1982).

56. See supra text accompanying note 44.

57. Red Team Handbook, supra note 2, at 52.

58. Id. at 52-53.

59. Id. at 53.

60. Since you will likely never be able to prove or disprove these assumptions to a level of factual certainty, the Key Assumptions Check is a useful tool for analyzing these assumptions and making an optimal decision. See infra notes 120-26 and accompanying text.

61. This discussion is not a blanket argument against counterintuitive behavior experts. It is another example of the need for us to question assumptions and think critically, by making the implicit explicit, to decide what is the right decision for a specific and unique case without relying on the categorical shortcut of “that’s what we always do.”

62. Red Team Handbook, supra note 2, at 112 (citing Stephen Brookfield, The Skillful Teacher: On Technique, Trust, and Responsiveness in the Classroom (2015)).

63. Id.

64. Id.

65. Id. at 113.

66. Id. at 212 (citing Kelly Leonard & Tom Yorton, Yes, And: How Improvisation Reverses “No, But” Thinking and Improves Creativity and Collaboration (2015)).

67. Id.

68. Id.

69. Id.

70. Id.

71. Id. at 212-13.

72. Id. at 213.

73. Id.

74. Id. at 75 (citing Henri Lipmanowicz & Keith McCandless, The Surprising Power of Liberating Structures (2013)).

75. Id.

76. Id.

77. Id. This practice of giving each individual a chance to reflect and then “pre-committing” to their answer is the simple “Think-Write-Share” technique, which can be used in conjunction with almost any other Red Team technique, giving each group member an equal chance to lend their voice to the discussion without “grandstanding [or] thinking aloud.” Id. at 201.

78. Id. at 76.

79. Id.

80. Id.

81. Id. at 142 (citing Richards J. Heuer Jr. & Randolph H. Pherson, Structured Analytic Techniques for Intelligence Analysis (2015)).

82. Id. at 143.

83. Id.

84. Id.

85. Id. at 57.

86. Id. at 43.

87. Id. at 44.

88. Id. at 43.

89. Id. at 45-46.

90. Id. at 46.

91. Id.

92. Id. at 144 (citing Morgan D. Jones, The Thinkers Toolkit: 14 Powerful Techniques for Problem Solving 80-86 (rev. ed., Three Rivers Press 1998) (1995); Russo & Schoemaker, supra note 24, at 162.

93. Id. at 144.

94. Id. at 144-45.

95. Id. at 145.

96. Id.

97. Id.

98. See Red Team Handbook, supra note 2, at 73, 146.

99. Id. at 175.

100. Pozner & Dodd, supra note 1, at 64 (“Facts beyond change are the givens of a lawsuit that will be believed by the jury as fair, accurate, and highly relevant regardless of any part’s best efforts to dispute or modify them.”).

101. Id. at 65-71.

102. Red Team Handbook, supra note 2, at 176.

103. Id. at 175.

104. Id.

105. Id.

106. Cf. MCM, supra note 15, R.C.M. 916(e)(3)(A) (explaining the elements of self-defense).

107. Red Team Handbook, supra note 2, at 175-76.

108. Cf. UCMJ art. 120(b)(2)(A) (2017) (establishing the crime of sexual assault as, inter alia, commission of a sexual act upon another person without their consent).

109. Red Team Handbook, supra note 2, at 176.

110. Id.

111. Id. at 176.

112. Id. at 87 (citing Peter Schwartz, The Art of the Long View: Planning for the Future in an Uncertain World (1996)).

113. Id. at 89.

114. A “branch plan” in military doctrine refers to a “contingency option[] built into a base plan” that may or may not be executed based on anticipated events or conditions. U.S. Dep’t of Army, Doctrine Pub. 5-0, The Operations Process glossary-2 (31 July 2019).

115. UCMJ art. 107 (2016).

116. See MCM, supra note 15, M.R.E. 304(h). Hopefully, you did not accept these assumptions uncritically.

117. Red Team Handbook, supra note 2, at 163 (citing Heuer. & Pherson, supra note 81).

118. Id.

119. Id.

120. Id.

121. Id.

122. Id.

123. Id. at 164. If necessary for further analysis of which assumptions are “key,” continue the key assumptions check by identifying which assumptions are dependent on other assumptions.

124. See MCM, supra note 15, R.C.M. 1002(b).

125. You can also see an opportunity to use the “Five Whys” here.

126. Red Team Handbook, supra note 2, at 172.

127. Id. at 173 (citing Gary D. Klein, Sources of Power: How People Make Decisions (1999)).

128. Id.

129. Id.

130. Id.

131. Id.

132. Id. at 174.

133. Id.

134. Id.

135. Daniel Kahneman, Thinking, Fast and Slow 31, 40 (2011).

136. Id. 36-37.

137. Id. 44-45.

138. Red Team Handbook, supra note 2, at 3.

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