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Conflictineering 2K10

Conflictineering is creating or using an event to expose the hypocrisy or immorality of a person involved in a dispute and then restoring order in return for a fair disposition of the dispute.

This paper is the 2K10 update of conflictineering. It requires an independent processor, a head equivalent to a Ram, with only the facade of compatibility with all segments of society. To run: follow the suggestions a:\ to z:\ and then rewrite the program as it runs to your life drive.

It's never been easy to balance the scales of justice for a person whom the prosecutors in our society have accused in a case with serious charges, or as far as that goes for any indigent person. The criminal justice process is more sanitized today than ever; however, the task of receiving a fair disposition of criminal accusations is as difficult as representing a prisoner of war before a military tribunal.

Presently, obtaining dispositional fairness in a case with serious charges is almost impossible. All of the great protections of our Constitution are being interpreted in a way that eliminates a fair disposition for a person once guilt has been determined. In today's market, you must waive any opportunity for dispositional fairness if you choose a jury trial and do not win each and every count in the charging papers.

The question from many today is, how can we cut our losses and prevent the leaders of the coup d'état from trampling us into total submission? The answer is the same now as in the past -- it is only clearer now -- we must use techniques that don't rely upon judicial mercy for success. When we depend solely upon the fairness of the judge, we suffer the full consequences of the political winds.

The criminally accused, and especially those in serious cases, need true representation. True Representation means engaging in conflict, dispute resolution and persuasion while still effectively litigating constitutional concepts. Although many conventional lawyers are initially overwhelmed at the thought of balancing these skills, they are not mutually exclusive, and their simultaneous use is necessary for true representation. This section's goal, together with the presentation, is to suggest a method for enhanced representation.

CONFLICTINEERING - This involves risk for the inept; high gain for the skilled. We tried for over a decade to describe this technique by recounting specific acts that should be done -- we opt now to define the technique and identify it with our new word, "conflictineering." Describing the specific acts has missed the mark; first, because reproducing these specific acts often fails to cause the original results, and second, because replicating the specific acts is too limiting on the powers of the technique.

Attorneys are the only people in our society authorized to use the full spectrum of forums to resolve disputes. Most frequently, attorneys do not analyze representation in terms of dispute resolution. This is almost universally true of criminal defense attorneys; the natural tendency is to respond to the charges and react within the format of the criminal justice system. This reactive method of defense is the easiest, and best insulates an attorney from criticism. Representation that does not include dispute resolution, problem solving and negotiation as primary goals is deficient.

Most attorneys want to limit the scope of their representation to tasks that they can do at the courthouse. Effective dispute resolution, problem solving and negotiation usually require a much larger arena than the courthouse. 

A.  Defining Conflictineering 

There are many facets to conflictineering; this mandates a definition that is both complex and constantly evolving. The following explanation begins the task of articulating this definition of "conflictineering."

Conflictineering begins by creating and/or using an event or action to expose the hypocrisy and/or immorality of a person involved in a dispute. The exposure of the hypocrisy and/or immorality is done in a way that mandates the person being exposed know that he/she is violating an acceptable agenda. Sometimes, this agenda is a law-based agenda, sometimes a social agenda, and other times, a moral agenda.

This conflictineering is designed to pierce the image of the person that he/she presents as him/herself. Features of this presented self image can be many things because, remember, this is an image fabricated by a person's agenda. Although in this paper, the targets of conflictineering are presented as people, institutions can be portrayed as targets to attack people who have publicly committed to the policies of the institution.

B.   Conflictineering in General 

 Conflictineering obviously combines the word "conflict" with part of the word "engineering" to defuse and expand the traditional meaning and connotations of "conflict." "Engineering" involves putting scientific knowledge to practical use, so we include "-ineering" to infuse "conflictineering" with the sense of action informed by knowledge.

For over a decade we have tried to explain what we have only recently termed "conflictineering." The difficulty in explaining conflictineering has been due, in part, to our lack of understanding of this complex concept. Hopefully, our explanation has progressed; we feel our understanding has.

People are uncomfortable with any disturbance of their perception of order. They do not like conflict directed toward them, and generally seek to avoid it. The natural human reaction to conflict is a flash of defensiveness followed by an attempt to smooth out the conflict. In the dispute resolution process, we need to use conflictineering to receive an advantage from other people's desire to smooth out conflict and restore harmony. Harmony can be exchanged for a fair disposition of a case.  Prosecutors, judges and law enforcement officers want to keep the focus of cases on the facts of the crime and the "vicious criminal" who committed it. As long as this remains the focus, they are on sure political ground and will receive nothing but political benefit and smooth sailing in pursuing the maximum punishment allowed by law.

We need to use conflictineering to create social and political consequences to our adversaries. Part of conflictineering is raising issues of injustice in the system, e.g., issues of racism, issues of political or ethical misconduct, issues of burdensome financial costs and other inequities. The conflict created can be used as negotiating leverage to obtain a fair disposition of the charges. 

C.  Enhancing Opportunities for Conflictineering 

1.  Have a Motions Strategy 

The Action Motions 2K10 sections provides a detailed description of motions. The Action Motions 2K10 sections stresses the importance not only of filing numerous motions, presenting substantial evidence to support the motions, but additionally the importance of using motions as an integral part of the advocacy systems being used.

Motions not only consume time -- a commodity that is rare with both courts and prosecutors; moreover, as outlined below, they are essential to conflictineering and the three other basic advocacy systems. 

2.  Bring Supporters to the Courthouse 

The dynamics of the courtroom and the justice dispensed changes when the courtroom is packed with supporters, including the client's family and as many others as you can find. 

3.  Establish a Reputation for Being Litigious 

You must establish a reputation of being an advocate that does not accept adverse rulings. Discuss injustices with the media, attempt interlocutory appeals or an ancillary action, such as jail conditions litigation. 

4.  Engage Community Leaders 

Involve people in the community not normally in the criminal justice process to contact the decision makers who can effect the disposition of your case. The people can include a wide range of leaders, including, but not limited to, both political and religious leaders. 

5.  Encourage the Media's Involvement 

Assuming the offensive to gain some public support for your client is often advisable. The media is often vital for the issues you have chosen for the conflictineering events. If you fail to involve the media, the only information about the case is going to be the prosecutor view of the case which the media will obtain from law enforcement. 

6.  Be Confrontational 

The confrontation we are advocating can be direct or indirect, overt or subtle, and need not involve open hostility. Confront the judge, prosecutors, law enforcement officers and others about their own weaknesses including their racial, sexual and other forms of discrimination. This undermines the moral validity of their agenda.

7.  Become Involved in Community Organizing 

Often, the only power that the downtrodden have in our society is gained through protest in the community. Support this type action to benefit a person you represent. 

8.  There Can Be Numerous Other Ways To
  Enhance Conflictineering

These examples which enhance conflictineering are only a beginning.  The scope of effective conflictineering strategies is unlimited. There are numerous specific acts that have been integrated and used while engaging in conflictineering, but talking about specific acts missed the mark in explaining the concept. For all of the ways conflictineering has succeeded in the examples above, there are instances where it has failed because of a poor understanding of the conflictineering concept.

 D.  The Purpose of Conflictineering

In a sentence, the purpose of conflictineering is to obtain an advantage in resolving an issue. The purpose of conflictineering and the reasons for its use are very much interrelated. We use conflictineering to obtain power.

The wealthy, the socially prominent and the politically powerful  individuals in our society have daily access to power that we try to obtain for a downtrodden person only on rare occasions. The powerless need every possible technique and skill to help balance the scales of fairness for them in a society that promises, but fails to deliver equality. By using conflictineering, a minority group or an individual can strongly encourage an individual or entity that has control over their fate, or even most of society, to weaken its position. Conflictineering is changing the direction and desires of your adversaries. It gives power to those otherwise denied power.

Two surprising benefit to advocates who frequently use conflictineering have been

     (1)  a high overall approval rating from their clients and

     (2) the ability to sustain a higher than normal energy and interest

           level in resolving the litigation.

We must, therefore, add these benefits as additional purposes for using conflictineering. Anything that increases client confidence in us as their advocates and sustains our energy level is an unreplaceable asset. Clients who have confidence in their advocate most often follow the advice of the advocate and therefore become team members who help reach a solution and are not a part of the problem. 

 E.  Preparing for Conflictineering  

1.  Gaining Information 

  One of the most important steps in preparing for the conflictineering process is gaining information about the adverse parties. Learning everything is important: social interests, financial status, family interests, health conditions, work load, political tendencies, sports interests, and many other things. It is critical to learn not only the adversary's status in the community, but also, the community's perception of this person -- this includes the person's strong and weak points. Correct information is a core ingredient in effective conflictineering. 

2.  Subject Matter 

Using the main dispute of the litigation as the subject of the conflictineering is not necessary, or even desirable in most conflictineering events. Lawyers have stymied the development of any concept similar to conflictineering for years thinking the case-in-chief was the only source for the subject matter of the conflict. By selecting a subject matter other than the dispute in the litigation, you are allowed greater flexibility and broader options for sustaining the conflict until you can prevail.  Selection of the subject matter for the conflictineering event is another crucial area of preparation. 

3.  Testing 

After gaining information, you should next test market a few issues. This can be done in many ways; the easiest is by testing different ideas for a conflictineering event on various people, first friends, and the other people in the community. One important inquiry is to decide if your information is correct, another is to decide if anyone is interested in the issues you plan to create. Using issues that easily polarize people is advantageous.

4.  Timing 

You should select an opportune time to begin the conflictineering.  This can be as crucial as anything in the process. The key to selecting the appropriate time to begin is being flexible.

Being flexible enough to delay the beginning is important or even scrap the whole event if conditions change. Your own health considerations and work load are as large a consideration for the timing process as the overload of your adversary. Conflictineering is not a low stress event. 

5. Financial Considerations 

Whether a private practitioner or a public defender, you must have the financial resources, including time, and the willingness to expend these resources to sustain the conflictineering process to its conclusion. You can't begin an event that will fold due to inadequate commitment of financial resources. The plan for conflictineering must include a budget for both time and money. This budget must be as flexible as any component in the conflictineering process.

These financial considerations are discussed here because we are constantly amazed at the number of lawyers that fail to realize how their performance in one case affects all of their other cases. For many lawyers in private practice, each project must be cost-effective or they're angry with their client and become unproductive.

Likewise, many public defenders do not put enough time in some cases because the case doesn't seem to justify the time. If each project must be cost-effective, or time-effective, maybe you should not venture into conflictineering; it is not always cost-effective or time-effective.  For many institutionally employed lawyers, peer acceptance, easy working conditions, approval of their agency's funding source and approval of their behavior by their agency become important considerations. To practice effective conflictineering, you must be prepared to make sacrifices in these areas, for they are often incompatible with true representation of powerless or indigent clients. Many institutions established to represent indigents are opiates for the sponsors. Conflictineering, if done correctly, removes the opiates from the "do-gooder" segments of society that are the pseudo-supporters of indigent representation. When you are preparing for the conflictineering process, be careful in structuring the people who will work on the team. If a person practices life "pro se" -- be careful. 

6.  Written Materials 

Using written materials in the conflictineering process is not necessary, however, for most events, using this medium is best at least partially. In writing, careful consideration should be given to writing the material in newspaper style. The written materials should most often be written to interest the public. Consider a format that includes headlines, short paragraphs and quotable phrases. If you use written materials, you may want to consider releasing "previews."   For example, you may want to send a letter to your adversary informing him/her that you have been provided information and you seek confirmation or denial of the information before you act further. Then, in the letter, state the time and day you will proceed. 

7.  Team Concept 

For people who do not presently work in a team concept environment, the preparation process for conflictineering must include developing a team.  There must be group discussions, planning, and division of responsibility. At a minimum, there needs to be some assignment of roles. 

8.  Discussing the Conflictineering Plan 

The surest way for a conflictineering event to fail is for the people working with you to lack information about the conflictineering plan. 

9.  Flexibility 

A rigid plan and a predetermined script limits the power of  the conflictineering concept. It is necessary to talk about and think through alternative plans and to seize opportunities that present themselves. 

10.  Goals 

It is necessary to plan a goal for the conflictineering process. The goal should be discussed with the person you represent before you begin. If the person you represent does not commit to the goal, you may be beginning another dispute resolution task with this party after the primary conflictineering goal is reached.

The goals you develop for your conflictineering process must be feasible. Establish ambitious goals, but don't be ridiculous. As with everything in this process, the goals must be flexible, but you and your client cannot become greedy as the process begins to succeed. Succeeding in accomplishing a conflictineering goal you do not believe is fair to all concerned is difficult. Conflictineering requires a goal that can command a strong personal commitment. 

11.  Consequences 

Adequately preparing yourself and other people on the team for the consequences of the conflictineering process is often the difference in success and failure. Thinking your adversary is not going to use her/his power to repel your attack is simply naive and unrealistic. The often used cliché of exercise enthusiasts, "no pain -- no gain," is a necessary warning for your client and other people on the team who are new to the conflictineering process. 

F.  Concepts of the Conflictineering Process 

One concept of the conflictineering process is to slip carefully between the skin of the presented self of your targeted person and her/his true self. You then begin to turn the targeted person inside out. After this, you display and present the undesirable portions of the true self of your targeted person to his or her support group and if necessary, the public. With this process, you should have the targeted person, their support group and the public not pleased with what they see.

Another concept of conflictineering is to consume a large percent of your adversary's energy, time and financial resources on matters that are not very important to him or her. Somewhat a part of the concept described above, is making your adversary's life unpleasant with the things you do in the conflictineering process. You paint a mental image of your adversary that they do not like portrayed to their peer group or people in general. Next, you repeatedly display this image of your adversary until the image becomes people's perception of your adversary.

These are but a few of the concepts that can be an integral part of the conflictineering process.  Developing concepts is a large part of the process.

G.  How to Begin the Conflictineering Process

 

The things you do to start this process relate to the success you can expect.  Of course, you have to choose the medium you will use to begin the process. Things to consider include the following. What will be the event?

Will the event begin with oral or written communications? Will the beginning be private or public? Which person on the team will cast the first stone?

Despite all these considerations, it is of prime concern that you attempt to get the targeted person to commit to a position. For our purposes, it is not at all necessary that the targeted person take a position; however, it is essential that all involved know you attempted to get the targeted person to take a position. If the targeted person denies the facts, you begin the documentation and proof process to expose his lies; if the targeted person says nothing or admits the facts and charges, you have accomplished the beginning goal. Failing to answer the charges will be your adversary's first mistake; getting your adversary to answer will be your first success.  

H.  How to End the Conflictineering Process 

 With great difficulty, but often great relief, is the way the conflictineering process is ended. If you receive the relief you need, you often have to eat some crow to allow your adversary some reward from the bargain. Withdrawing from the conflictineering process is hard once you have mentally, physically and financially geared up for it.

You must pounce on the opportune moment to gain the advantage you have sought since beginning the conflictineering process. Allowing the conflictineering process to become a bickering battle is very easy; if this happens, you lose the benefits and suffer the liabilities.  Most people's idea of conflict is engaging in a behavior that satisfies their ego and harms or angers a person who is their adversary. People who engage in this type of conflict are generally wasting their time and even if they have been productive, they can't stop at an opportune time for their effort to become dispositive of the subject dispute. Conflict by itself is meaningless; conflictineering has a stopping point that is crucial to its success.

One reason conflictineering works is that the attacked person wants to restore his or her self image.

You should have a track record of allowing this to happen. You should, most times, leave a glimmer of hope that this can quickly happen. Your reputation for productivity in the conflictineering process is an asset that allows the process to become cost-effective after a short period. Ending the conflictineering process and understanding the time to resolve the dispute is easier if during the preparation segment of the process you have established a realistic goal.  

I.  The Forums for Conflictineering 

 The forums for using conflictineering are only limited by the imagination and innovativeness of the people using the process.  Conflictineering events can be as high profile as street demonstrations and as low profile as a conversation between a judge and a lawyer casually meeting at a social event.  Most frequently, the forum becomes the courtroom, no matter where you may have begun the process.

The advantage of the courtroom as a forum is that your adversary is confined to its physical presence during that part of the conflictineering process. This gives an excellent opportunity to gauge his/her reactions.  There are no forums that are exempt from the  conflictineering process. 

J.  Qualities of People on Conflictineering Team 

 The team of people who are engaged in the conflictineering process should be diverse. It is important that a person who is an expert in understanding strategy is on the team. At least one person on the team must have superior knowledge of all aspects of the law. This process is not one that can work without the involvement of skilled legal talent. Another person on the team should excel in the skills of oral and written persuasion. The team needs an innovative and creative person; people of high energy and a strong commitment to the project are also mandatory members of the team.  It is an advantage to have access to a person who has a friendly working relationship with the judge, prosecutor and law enforcement in the community. Thinking you can always have a person of this status on the team is not realistic. If this type of person is on the team, you must use the utmost care to insure this person does not neutralize the polarization aspect of the conflictineering process.

K.  The Gentleness of Conflictineering 

 Much of the focus in this paper has been on the street fighting aspects of conflictineering. The concept of conflictineering is not one of civil disobedience in the judicial process, although the boundaries could extend to this type of behavior.

The process of conflictineering is not one of total confrontation.

It is not a process of arrogance or of rudeness.

You are very wrong if you see it as merely a way to only exchange insults.

It is not a process that requires a constant loud, commanding, oral presentation.

Conflictineering is a sophisticated ballet of both words and behavior that takes on operatic characteristics. If it is not done in this manner, it can become a project of creative destruction. 

L.  Why Conflictineering Works  

There is, of course, no simple explanation for why conflictineering works when properly applied. Some reasons are apparent: people dislike any form of conflict, and especially conflict directed to their weaknesses. The concept of conflictineering hinges upon this aversion to conflict and disorder. When we create focused disorder, we suddenly find in our possession an immeasurably valuable bargaining tool -- the ability to restore order -- that can be traded in return for the dispositional fairness that is otherwise too often denied to the powerless members of our society.