My swordsage just got the maneuver Hand of Death:
This maneuver functions only against flat-footed opponents. As part of
this maneuver, you make a melee touch attack against your opponent. If
this attack hits, your opponent must make a successful Fortitude save
(DC 14 + your Wis modifier) or be paralyzed for 1d3 rounds.
According to the SRD, being flat-footed means the following:
A character who has not yet acted during a combat is flat-footed, not
yet reacting normally to the situation. A flat-footed character loses
his Dexterity bonus to AC (if any) and cannot make attacks of
opportunity.
However, my swordsage also knows Cloak of Deception:
When you initiate this maneuver, you turn invisible, as the greater
invisibility spell (PH 245). You remain invisible until the end of
your current turn.
The SRD mentions that if someone is attacked while the attacker is invisible, he's denied of its Dexterity bonus, but does not specify it's flat-footed (even if, logically, it should). So, the question is: can my swordsage use Hand of Death against an opponent that has already acted in combat by using Cloak of Deception?
If going by RAW, it shouldn't be possible. However, this question came to my head after asking about the feat Snap Kick: Is the damage from Snap Kick fixed like, for example Insightful Strike or can you add any more bonuses to it?
In that question, it came to light that the damage calculation of the feat is the same as an off-handed attack but it's not explicitly said it is. So, could this be the same case? Could it be that if attacked by an invisible attacked you are flat-footed even if it's not explicitly said?
Best Answer
No.
Losing your Dexterity bonus to AC is one of the effects of becoming flat-footed:
(SRD, Condition Summary, Flat-Footed)
But there are other ways to lose your Dexterity bonus to AC, without becoming flat-footed. They are not the same thing. While this was certainly always the case, Rules Compendium has the clearest statement of this fact that I could find:
(Rules Compendium, pg. 15; emphasis mine)
This makes it very clear that being flat-footed is just one of several ways to lose your Dexterity bonus to AC.
The distinction is important for a number of reasons, including:
Uncanny dodge makes one immune to being flat-footed, as well as lets you retain your Dex to AC against invisible attackers, but not to other ways of losing your Dexterity bonus to AC.
Being flat-footed prevents attacks of opportunity and immediate actions; losing your Dexterity to AC does not.
Several abilities require that your target be flat-footed specifically (such as the hand of death you mention), while other abilities require merely that the target not have Dex to AC (e.g. the Complete Adventurer ninja’s sudden strike).
While flat-footed is generally the rarer/more serious condition, ninjas can make sudden strikes against barbarians because there are other ways to deny Dex to AC even if the barbarian’s uncanny dodge makes them immune to the flat-footed condition.
Most relevantly to this question, a creature is either flat-footed or it isn’t: there’s no way in the game to be flat-footed with respect to one creature and not with respect to another. For a creature to be flat-footed, there has to be something wrong with that creature’s ability to respond to any situation. Major examples include not being aware that one is in combat at all (vs. knowing you are in combat but not knowing precisely where your assailant is), or when balancing on some slippery surface (and not being able to avoid blows even if you know they’re coming because you cannot safely move around).
But you can lose your Dex to AC with respect to one attacker and not another, for example, you can have your Dex against a visible creature but not against their invisible ally.
Thus, on this:
I have to disagree: no, it should not. The target in this situation is aware that a threat exists, and has their guard up as best they’re able under the circumstances. That is very different from the situation that flat-footed describes, where they do not (or cannot) make any attempt to defend themselves at all.
Anyway, yes, this does mean that cloak of deception cannot enable the use of hand of death. Hand of death is mostly limited to the first round of combat, and then only against targets whose initiative you’ve beaten. Note that a swordsage is in a good position here, however: because they ready so many maneuvers (and their recovery is so atrocious), they’re unlikely to use any maneuver more than once in a fight (so the fact that you can’t use hand of death again after that first round doesn’t matter so much), plus as a lightly-armored character with the quick to act ability, their initiative should be pretty good. Plus they have decent stealth skills to enable surprise rounds and thus more opportunities to strike flat-footed opponents.
Honestly, the biggest problem with hand of death isn’t the flat-footed requirement, it’s the fact that so many creatures are immune to paralysis, and/or have gigantic Fortitude saves.