The Art of  War

In over forty years of defending people charged with driving while under the influence of intoxicating liquor in New Hampshire, I have developed my own philosophy, my personal approach to that task. I call it, "The Art of War."

I view my job, as your attorney, to do whatever I ethically can to help you win the war that is begun when you are arrested and charged with driving while under the influence of intoxicating liquor. There is an enemy, the State of New Hampshire, and that enemy wants to take your driver's license, fine you, and even possibly imprison you. The weapons that I bring to that conflict I have acquired in more than forty years of defending people who found themselves in the same situation in which you find yourself now. Over that time, I have learned to use the United States and New Hampshire Constitutions, state statutes, administrative regulations, Supreme Court Cases, court rules, rules of evidence, and the knowledge about individual Judges, Prosecutors, and police officers, that I have obtained from my years of experience, trying literally in the thousands of DWI cases,.

I want to take every legal, strategic and tactical advantage that may help you to win the war. I view my job as using my knowledge, skill and expertise to assure that you emerge from your war with the New Hampshire legal system with the least possible damage. I firmly believe that to best represent you, I need to make the task of the State (the police, their prosecutors, and the employees of both the Bureau of Hearings and the Division of Public Health Services) as difficult as possible.

In that undertaking, I need your help. I need to know what you know; I need you to be open and 100% honest with me; the war on your behalf can only be successful if I know the truth from you. Too often when my clients have not fully confided in me, they have not done as well as they would have had I known the truth. I make my decisions as to how most effectively to wage war for you based on what you tell me. With bad intelligence information from you, I may make erroneous assumptions of the strength of the enemy or of the strength of your case. I similarly need to know your objectives - what strategic goal is of primary importance to you.

Sometimes, your acquittal on the underlying charge of driving while under the influence can only be won at the expense of your suffering a license loss, possibly for refusing to submit to a test, possibly by accepting a license loss in exchange for a conviction on a lesser charge than DWI. Some objectives cannot be achieved without the loss of some other objective.

Jointly, you and I will choose a strategy that appears most effectively to maximize the benefit to you. Part of the art of war is knowing when not to do battle. Sun Tzu counsels doing battle with your enemy only when he is "on fatal terrain." Fatal terrain is a battleground on which the enemy may be vanquished. Nothing is more foolish than engaging in a final battle where one is doomed to lose. My job, and the product of my experience, is to identify the area of fatal terrain on which you and I may engage the enemy and ultimately prevail. Some battles along the way may be lost, some by design in order to gain a more important objective, a more important advantage, one that will lead to the final victory.

Diplomacy is an important weapon to employ in order to avoid losing the war; one has to know when to fight and when to negotiate. I consciously build good relations with police and prosecutors, not only as a matter of strategy, but out of respect; many police officers and other law enforcement people I have known over the years are good people, who have fully established their right to be treated with respect and courtesy, even in the battle in the court room. If the battle is to be fought it will be fought hard, but fairly.

The most important decision in any DWI case is the formulation of the overall plan that the war is to follow, identifying the potentially fatal terrain, and there and only there engaging the enemy in final battle. I find no greater compliment from the enemy than when a prosecutor has unexpectedly (to him, anyway) lost a DWI trial that he thought he could not lose, and approaches me after the trial in order to tell me, "Struckhoff, you are so lucky." I have learned that what may appear to be luck is actually the product of having knowingly chosen to be in the right place at the right time, presenting the right case and closing with an argument that the Judge, in rendering his verdict of "not guilty," repeats back almost verbatim as his opinion. My typical reply to the prosecutor is, "I'd rather be lucky than good," not because I believe that, but because I want him or her to think that it was only as a result of bad luck that the State lost its case; I am content to allow the prosecutor to continue to believe that, in the hope that he or she may again wander on to fatal terrain in our next battle.

As in war, the battle in the legal arena involves the assessment of not only of the strength of the enemy, but the strength of the forces of the defense as well. In fighting our war, we will use the same tools as the General of the Army including back-up strategies in case of failure of the primary strategy. We will disguise our objectives, for we do not want the enemy to realize when he has been lured onto fatal terrain. We will fight where the enemy is weak and where we are strong. Where he is strong and we are weak, we will retreat and marshal our forces for the final battle. We will try to sap the will of the enemy to fight. We will make him believe his objective is easily obtainable, and we will make it difficult. We will tax his patience and test his endurance.

Ted Lothstein comments

For 16 years, in defending clients charged with DWI, and all levels of criminal offenses from shoplifting to first degree murder, I have strived to follow the principles eloquently described by Gene Struckhoff above.  I work with my client to set a reasonable and prudent objective -- and then we aim higher.  In litigation, just as in chess, every tactic and every move must be carefully considered and employed so that it serves the ultimate objective of the representation.  I never file a "frivolous" motion because giving the other side an easy victory emboldens them and weakens our credibility.  I always strive to treat the opposing prosecutor and police officers with dignity and respect because that is the way I expect them to treat my client.  Finally, it is important for clients to understand that when these principles are faithfully pursued, sometimes "miracles" occur - outcomes far better than defense lawyer ever could have reasonably anticipated.  It is also true that when these principles are followed, sometimes the battle is lost and the client is convicted as charged after trial.  Gene and I always keep at the forefront of our consciousness that what we do is not a game... we are working to defend and protect a human being who may enduring the most difficult, stressful time of their life.  That means we live under an ethical, moral and professional mandate to do everything within our power to achieve the very best possible outcome for our clients.