The Prosecution Rests
So the prosecution finished its case last week at the Black trial. I am glad: it was running out of steam. It finished on the same theme: Conrad Black spends lavishly and treats shareholders with profound disrespect. There were e-mails from Black to various folks sniping at and snipping about dissident shareholders. Then the prosecution wound up the week by dropping its charge of money laundering.
I must admit to being perplexed. The reason may be that I don’t have a nanosecond of legal training, so my impressions may be totally wrong and the prosecution may be 90 per cent of the way to total victory and Conrad one foot from the slammer. I am trained as a strategist, and nothing the prosecution is doing makes strategic sense to me.
In strategy, there are a few things you want to do. One is to have a clear goal, and everything you do has to be in service of that goal. Two, you need to have a sense of the individual battles and how they piece together to make a whole campaign; and building momentum in that overall campaign is really important. Three, you take the opponent deadly seriously and assume they will fight intelligently even though there is a possibility they will make grievous tactical or strategic errors. Four, if you can’t figure out a plan for winning, you don’t start the battle in the first place.
While the prosecution may be legally brilliant in ways I just don’t understand, it fails the strategy test utterly. The clear goal has got to be to have Black found guilty of criminal charges—like fraud or racketeering or money laundering. That notwithstanding, it appears that the goal has been to have Black found guilty of being pompous, arrogant, extravagant, greedy, wily and disrespectful to shareholders. I think it is fair to say that the prosecution has accomplished that goal in spades—although for Canadians, we kinda knew all that stuff already and didn’t need a trial in Chicago to reveal those Black traits. Shifting the core goal or losing sight of it are bad ideas in strategy, and that is just what the prosecution seems to have done. Sure, embarrassing Black may influence the jurors, but I would not be confident that when the judge reminds them exactly what the charges are, and the standards of proof, that they will ignore the judge and convict Black because the prosecution has convinced them that he has a number of unpleasant characteristics. Unpleasantness has never been a criminal offence.
On building momentum across a campaign and taking your opponent seriously, I feel the prosecution has failed miserably with the dropping of the money laundering charge at the last moment before resting its case. All the prosecution has had to deal with to date are things about which it should know everything—i.e., what its own witnesses know. They have been paraded to the stand and in most cases made to look like absolute fools by the defence—especially the members of the so-called audit committee of the board. And apparently as a consequence of what these witnesses have revealed, the prosecution decided that this charge has no basis in fact. That means that the prosecution either didn’t check in advance what its witnesses knew or it checked and thought that the defence would be too stupid to probe for data harmful to the government’s case.
Either is pretty lame, and as a consequence it feels like the momentum of the prosecution’s overall battle is being sucked out. Essentially the prosecution said to the jury, “You know that criminal thing that we were so sure Black committed that we brought it to trial? Well, we were dead wrong on it—so we would like to kind of sweep it under the cover. But those remaining charges? We are totally confident on them. They are nothing like the one we have dropped. You can be sure of that.” The jury has got to be rolling its collective eyeballs by now.
Which brings us to the final strategy imperative: don’t fight wars for which you have no plan for winning! I just plain fail to see evidence of a plan for winning. I see what I so often see when I work with companies on strategy: a plan for giving it a whirl. That is loser stuff. I am reminded of Tom Cruise’s line in A Few Good Men when he ridicules a naive but enthusiastic Demi Moore by referring to her proposed approach to discrediting the key witness as the “liar, liar, pants on fire” strategy.
Who knows, I may be all wrong on this and maybe that is why I am a strategist and not a lawyer. But this strategist is watching with great interest as the defence rolls out its strategy now that it is its turn to lead.