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What can the study of underdogs tell us about criminal defense?

Malcolm Gladwell recently wrote a wonderfully fun article about how underdogs win in the New Yorker. He profiles a few examples of how underdogs, like David in David versus Goliath, can win. To sum it up in a way that loses all the nuance and fun, Gladwell argues that successful underdogs (like David, George Washington, and a girl’s basketball team in California) win by playing within the rules, but in a way that violates the social conventions and norms that surround the activity the underdog is participating in.

So, for example, David laid down his sword and armor, and picked up a sling shot, in part so Goliath wouldn’t get close enough to land a blow. George Washington did not fight in ordered rows of men, but, instead, hid in the woods and picked off the English as they marched in bright red jackets through the woods (which were not bright red).

This approach has been successful, apparently, in the vast majority of cases where it’s been used militarily. It’s an inspiring story of cleverness triumphing.

Carolyn Elefant has written about what the conclusions from Gladwell’s article mean for the practice of law (Spoiler Alert: it’s good to be in a small firm). And one can see how this could be applied in lots of ways.

There is, though, a dark side to Gladwell’s article that isn’t as inspiring. Apparently, when underdogs keep fighting like underdogs, at some point they start to look like jerks.

What can Gladwell tell us about criminal defense?

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Maybe not much, I think. In all of Gladwell’s examples, the underdog fought, and was successful, because he had done something that was against the normal order of things. We cheer for these underdogs because the sympathy we feel for the underdog outweighs whatever positive feeling we have for the way things are normally done.

We don’t perceive David as having been a jerk, even though, when you look at it from Goliath’s perspective, he kind of was. Goliath thought he was going out for a fight in the middle of two rows of armies, and before he can even get to the main event, his opponent put a rock in his brain. When you think about it from that point of view, David kind of landed a cheap shot.

In a criminal case, the problem is often that the person accused of a crime is already accused of being antisocial in some way. That person (and his lawyer) has to convince the jury that there’s not enough evidence that he’s antisocial. Being a jerk to prove that you’re not a jerk is a tricky thing to do – it’s like convincing someone you don’t like eating chicken by eating a lot of chicken.

If anything, the lesson of Gladwell’s story is less that underdogs should fight cheap when they need to, but, rather, that if people are rooting for you, they may be willing to cut you some slack. Though, of course, that gets sticky too.

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