Crossing the Yalu - A Tale of Three Rivers

It’s 10 January, 49 BC and Julius Caesar is on the north bank of the Rubicon River. If he crosses the Rubicon, he will make a risky and irrevocable move against his enemy. Winning the battle will bring the prize of total control of the Roman Empire. If he does not cross, he will be hunted down, defeated. Killed, and worse, dishonoured.

Caesar takes the chance. He crosses the Rubicon. And changes the world.

It’s 1950 and the United States is at war with Korea. Everyone knows that North Korea is a puppet of China. Everyone knows that the North Koreans are being supplied by China, are retreating into China for rest and redeployment. Eventually, Chinese national troops overwhelm and kill US soldiers, inside North Korea. Then they retreat behind the Yalu River, where the Americans can not go.

General Douglas MacArthur begs US President Harry Truman to allow him to destroy Korean bases inside China. Truman refuses. He is afraid that crossing the Yalu will bring China into the war. At all costs – even at the cost of failure – Truman forbids MacArthur to enter Chinese territory. The Chinese and North Koreans know they have a safe refuge from which to attack US and South Korean forces. They attack, then streak back behind the sure safety of the Yalu. MacArthur is denied the single vital blow which will achieve victory: he is denied the ability to attack the enemy in its stronghold.

That inviolable refuge costs the US the war.

Many finer lawyers than myself tell us:
Never attack the enemy expert in his field of expertise. Attack on bias. Attack on factual foundation. Attack on previous treatment by the courts. Even attack on personal quirks – the “broken heart” doctor who advertises he’ll test bed sheets for alien sperm; or the “post-it note” doctor who said it was okay to miss the cancer which riddled the Plaintiff’s lymphatic system.

But never, never attack the expert in his field. He is a DOCTOR. He will embarrass you. He knows more medicine, more science, more SOMETHING than you. You must never, never follow him across the Yalu River.

Oh, really?

If you concede the science to the defence expert; the medicine to the defence doctor; the law to the defence lawyer – you have surrendered your case. You have taken your client’s trust and money under false pretences. Your retainer agreement now reads: “I will fight your cause zealously, fearlessly and tirelessly UNLESS SOMEONE WITH A DEGREE SAYS I’M WRONG. THEN I’LL JUST GIVE UP.”

Don’t concede the battlefield to your enemy. Let him hunker down if he wants. Let him get comfortable. Let him smugly build his bivouacs and get the canteen brewing fresh

coffee.  Let him dig latrines.  Let him get comfortable, producing all that defence crap.  Then blow up the bivouacs.  Make a crater of the canteen.  Lob a FAB on the privy.   The best part of attacking the enemy in his base is: his pants are down.

Learn the science.  You’re smart.  You have seven years of university.  So does Doctor Defendo.  But you’ve been in a fight before.  He hasn’t.

In a war would you bet on the army with Armani uniforms, beautiful feathered hats, manicured moustaches?  Or the sweepings of the dockside, hard-bitten, broken-nosed, crude, filthy and used to a fight?

You pick a fight with the defense expert and do it in his field and you will terrify him.  He has no ability to defend except to lie about the science.  Catch him.  Expose him.  Every time he lies or tries to obscure the science, demonstrate that you know more.  You have the latest refereed journal article.  You know the vocabulary.  You know the names of the top people in the field.  You have the textbooks.  You have it all.  Right there.  In the room and in your head.

You may not be able to master the entire field, right away.  Fine.  Master one small area that’s central to your case.  The doctor will not have been in school for decades.  He likely does not subscribe to any learned journals.  If he subscribes, he probably doesn’t read them.  Use your own consultants to help you.  Take one point in the science and make it yours.  Deny him any refuge to rest and re-group.

The defence expert will be used to attacks on bias.  Attacks on his lack of facts.  Attacks on his poor treatment by other judges.  He will be used to taking refuge behind the inviolable moat of his science: “Well counsel, when you know as much about Kleine Arseloche Syndrome as I do, it’s quite easy to recognise.  Of course, my special expertise took a lifetime of study, so you’ll just have to accept that I know what I’m talking about and you don’t.”

Don’t let him.

Of a neuroradiologist and neuro-surgeon:

26     Q    And what functions does the frontal lobe deal
27          with, Doctor?  Do you know?
36     Q    How about executive function?  Do you know that
37          term?
38     A    What is executive function?
39     Q    I’m asking you, Doctor.  Do you understand the
40          term “executive function”?
41     A    No.
18     Q    Thank you, Doctor.  And what is executive
19          function, Doctor?
20      MR. ROSS:  Perhaps my friend could not be so negative
21          in his use of the word “Doctor.”  It sounds
22          insulting.
23     MR. HARDING:
24     Q    What is executive function, Doctor?  What is it?
25     A    As far as I understand it — and I’m not a
26          neuropsychologist.  My area of expertise is
27          imaging and the brain.  I don’t do
28          neuropsychology.  Executive function is a
29          neuropsychological term.  It’s really a very
30          complex thing of integrated functions of all the
31          complex parts of the brain.  And I am not an
32          expert in this area.
33     Q    So you can’t give us an opinion about executive
34          function?
35     A    Absolutely not.

…
44          Doctor, one of the comments you make in
45 your report, at the very top of page 3 you say:
46           The interpretation of high signal foci
47           requires analysis of size, shape, location
1               and overall number.
2
3          Now, that’s what you say there; correct?
4     A    Yes.
5     Q    And I think you now agree with me that size
6          doesn’t matter, the shape can be anything, the
7          location is at best iffy, so we’re left with
8          overall number; right?
9     A    No, we’re left with the whole picture.
10     Q    Okay.
11     A    Bringing them all into the equation.
12     Q    All right.  Doctor, I confess that given your
13          reference to the Atlas text, I went through the
14          text in some detail looking for the source of this
15          comment and I wasn’t really able to find it in the
16          section that we’ve been looking at on head trauma.
17          Do you know where I found that?  At page 1179, in
18          the section headed — the chapter headed “Normal
19          Aging, Dementia and Neurodegenerative Disease.”
20          And if you read the sentence that’s highlighted
21          there, it says:
22
23               Focal areas of high signal intensity are, in
24               fact, routinely seen in several
25               characteristic locations in the normal brain.
26               They may be scattered within the deep white
27               matter during normal aging and they are much
28               more widespread and prominent in a variety of
29               pathological disorders.  The interpretation
30               of these foci —
31
32          And you’ll agree that context means high signal
33          intensity foci.
34
35               — requires analysis of size, shape, location
36               and overall number.
37
38          That’s exactly what you said about Mr. Sovani,
39          isn’t it?
40     A    Right.  It’s about what I would say about any
41          white matter lesion in any patient.
42     Q    Do you know how old Mr. Sovani is?
43     A    I think he’s in his 20s

Pull out the NEJM article from yesterday that shows he’s a liar.  Keep forcing him to admit the facts you want about the science.  Or show he is a buffoon – like the 176 km/h head.  Let the jury see what he is.

Try the technique of making a statement you want him to admit, followed by the word “Correct?”  Don’t try to make positive statements which seek the traditional “Yes” answer.  It’s too complicated.  Just use “Correct”.  It has a nice whip-lash effect.  Every time he denies it, he sounds WRONG.  Every time he admits it YOU SOUND CORRECT.

Keep up the attack until the doctor clearly surrenders.  You’ll see it happen.  His shoulders slump.  His face falls.  His voices drops.  He answers “Yes” to all your questions.  Then trot out the money questions

If you have the courage to attack your enemy on his own ground, AND you do the proper preparation, then you will begin to defeat all who come against you.  Then you will be like those who came to a river called Jordan, who looked over it and saw the Promised Land, flowing with milk and honey.  They crossed that river.

Come on in.  The water’s fine.

Because MacArthur was right: “There is no substitute for victory.”