January 25th, 2012

Lessons from Musashi-The Book of Water

In  Musashi’s second book, The Book of Water, we continue to develop the warrior/trial lawyer metaphor:

Appearance. “The manner in which a warrior carries himself is of utmost importance both physically and mentally.” Musashi’s, Book of five Rings (Translated by Stephen Kaufman, Hanshi 10th Dan 1994) at 26. The appearance of a warrior / trial lawyer should be “quiet and strong and seem to be doing nothing.” Id. The lawyer neither appears to be tense nor in disarray. The lawyer simply appears. When it is necessary to present the lawyer does so with complete resolve, confident, “neither overbearing in attitude nor with false humility.” Id.

The Opposition. “A small man can beat a much larger man and one man can beat many men.” Id. at 27.  Never allow yourself to be intimidated by the size of the opposition. Never show the enemy “false bravado.” Id. at 30. Never “prejudge a view according to what you think things should be, but instead look at all things equally and in this way you will be able to discern what can hurt you and what cannot.” Id. at 29. Steadfastness of purpose is a key requirement because if you lack this you will easily be led into false security and be easily defeated. Id.

Purpose. “The martial arts [and trials] are not a game… . You must mean it when you strike… . If you do not, you will certainly get hurt. The only reason to draw your sword is to cut down the enemy.” Id. ad 31. The warrior/trial lawyer must “go straight to the heart of the matter… .” Id. at 33. Musashi teaches the main purpose of the warrior is to defeat the enemy. “Do not be side-tracked by the appearance of the enemy or yourself. Do not be conscious of the particular technique you will use. This causes hesitation. …” Id. “Your attack must be filled with conviction and purpose. In this way you defeat the enemy regardless of his abilities.” Id. Your attitude will be recognized by your opponent and he will prefer to fight someone else. Id.

Demeanor and Attitude. “Regardless of … experience, you must always remain calm. Calmness is attained through meditation and belief in your own skills. It is not to be confused with egotistical technique, which generally fails… .” Id. at 34-35. “Always be aware of the possibility of changing timing and rhythm.”  ”Your attitude must be such that you can shift into any other mode… without having to make a conscious decision.”Id. at 39. Never have a preconceived ideal about how a situation should come out. Be flexible with the intent to defeat the opposition. “The main idea is to move on the enemy instantly upon perceiving his own approaching attack.” Id. at 37. Go into the attack without hesitation and with the attitude of destroying the opposition.

Make Yourself Bigger. Musashi teaches: “Extend your spirit above and beyond the enemy’s body and spirit. Never cringe in fear. …[keep] your spine straight. … You first beat the enemy with your spirit and then you beat the enemy with…[your argument]. Go for the…[win] with utter resolve and commitment.” Id. at 46.

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January 22nd, 2012

Fourth Week of January-One with Nature

All actions take place in time by the interweaving of the forces of nature, but the man lost in selfish delusion thinks that he himself is the actor. But the man who knows the relation between the forces of Nature and actions, sees how some forces of Nature work upon other forces of Nature, and becomes not their slave.

Brihad-aranyaka Upanishad

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January 18th, 2012

Lessons from Musashi-The Book of Earth

Gerry Spence uses the metaphor of a warrior for a plaintiff trial lawyer. Taking from Mr. Spence and the classic warrior treatise Musasahi’s Book Of Five Rings we apply Musasahi’s “martialist” advice to litigation and trials:

Develop Technique. The warrior first learns proper battle tactics so he can survive in a battle. The first step in becoming a quality trial lawyer is to develop proper technique. Develop technique by reading from trial masters, observing quality lawyers, and trying cases. A martialist knows technique must be instilled into the subconsciousness so it becomes instinctive. The ability “reveals its true identity to a warrior only when the ’spirit of the thing itself ‘ feels comfortable as a vehicle for its own expression.” Musashi’s, Book of Five Rings, Stephen Kaufman. Hanshi 10th Dan (1994) at 11.

Forget Technique. It may sound contradictory, but in battle the warrior forgets about technique. “Development of technique is essential to understanding of purpose. Once a specific technique has been understood, the warrior stops using it on a conscious level because in combat having a conscious identity imposes limitations.”  Id. at xi. The same is true in trial- believe, prepare, then try the case naturally as it develops.

Warrior Consciousness. The development of “warrior consciousness” is ongoing. “Only from a constant search from within, based on one’s own lifestyle, can the truth be known.” Id. at 5.  A trial lawyer must first know himself. Then, according to Musashi, to understand the qualities of successful trial lawyer, look for successful qualities in other professions. “To learn the sword study the guitar.” Id. at 6.

Rhythm and Timing. “There are good times and there are bad times for for everything.” Id. at 19. Musashi teaches when we understand time we also understand rhythm. To Musashi “[i]t is absolutely essential to understand the timing of Universal harmony.” Id. To restructure time we need an understanding and realization of the universe or else our substance will be infected with error and we will not be able to properly perform in battle. Id. This comes with constant practice with putting attention on intention. Always prepare “with timing and rhythm uppermost in your mind.” Id.

No Shame in Losing. Musashi teaches that death to a warrior is not necessarily shameful. The same is true for the lawyer who losses. Applied to a trial Musashi says many types of lawyers have lost-some for the right reason and some for the wrong. The only shame in losing is to lose for the wrong reason. According to Musashi there is no shame to a lawyer who loses after thorough preparation and giving his best effort without consideration for winning or losing.

Never Stop Learning. Musashi teaches a warrior who is an expert in his particular form is still subject to defeat. “It is doubtful that anyone truly understands the ‘real’ way of strategy, much less lives it.” Id. at 3.  Mastery is something we never stop seeking to obtain. Musashi believes when we think we know it all we should retire. The same holds true for a trial lawyer.

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January 15th, 2012

Third Week of January-Rich v. Poor

Rich, Poor conflict strongest in 24 years (The Associated Press 1/12/12).                                                 The Associated Press article says “Americans now see more social conflict over wealth inequality… .” About three in 10 Americans polled said there are “very strong” conflicts between the rich and the poor. The share of U.S. wealth held by the top 10% of the population increased from 49% in 2005 to 56% in 2009. Id.

The United States government considers wealthy as having a household income that exceeds $250,000. Although this is a significant income, wealthy is a relative concept. The breadwinners of a family making $250,500 in an expensive area of a major city with typical family overhead most likely do not consider themselves wealthy.  But this family is wealthy compared to a family living on under $30,000 a year which is close to the official poverty level.

One should not feel guilty about making a good income;  one should not feel guilty about being fortunate; but one should remember how tough it is for those who must live on a minimum income:

-Give dignity by showing respect for others regardless of their income level.

-Give to charitable causes that help those less fortunate.

-Refrain from flaunting wealth.

-Remember it is not what is outside the person that counts it is what is inside.

-Remember we are all in this together.

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January 11th, 2012

Opening Statement Thoughts

I just finished reading a column in The Wall Street Journal titled The Fine Art Of Where To Start [a story] by Darin Strauss. Mr. Strauss says the most important part of a story is the beginning as in the first words out of the lawyer’s mouth in opening statement.

Opening Statement Must Tell a Story. In a personal injury case the story involves an injury to plaintiff. Mr. Strauss says the first lesson in story telling is to remember “A story equals trouble.” The personal injury story must discuss how the trouble has caused injury to plaintiff.

Beginning the Story. Mr. Strauss  believes the sooner we introduce the trouble into the story the more likely our listeners (the jury) will pay close attention. To Strauss this means beginning the story with the critical action of the trouble.

Jacob Appel in Writer’s Digest reasons:

I started devoting an entire session of my writing class to opening lines when I realized that the last formal instruction I’d had on the subject was the grade school admonition that stories should begin with “a hook.” In the years since, I’ve come to believe that the fate of most …[stories] is sealed within the initial …[phrases]—and that the seeds of that triumph or defeat are usually sown by the end of the very first sentence.

The Current Model. Quality lawyers and jury consultants teach to begin opening statement by telling the jury the story.  When telling the story David Ball advocates beginning with the rule then going to the story focusing on defendant rather then plaintiff. Mr. Ball usually begins the story before the trouble. In a factual narrative he teaches let the story unfold as it happened  with plaintiff being introduced after defendant causes the trouble.

Current Model Revised. We plan on tweaking the Ball model by beginning with the impact caused by the trouble. We will state this in a thematic way thereby introducing our theme with the impact caused by the trouble. This is similar to Ball’s model of beginning with the rule. After this beginning we will go to the narrative story as does Ball focusing on defendant. After the narrative gets to defendant causing the trouble we will introduce plaintiff as the victim of the trouble. We believe this will lead to a favorable jury reaction as taught by Mr. Strauss.

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January 8th, 2012

Second Week of January-Rise Again

Renew your brilliance. This is the privilege of the phoenix. Ability grows old, and with it fame. The staleness of custom weakens admiration, and a mediocrity that is new often eclipses the highest excellence grown old. Try therefore to be born again in valor, in genius, in fortune, in everything. Display startling novelty-rise afresh like the sun every day. Change too the scene on which you shine, so that your loss may be felt in the old scenes of your triumph, while the novelty of your powers wins you applause in the new.

Baltasar Gracian, The Art Of Worldly Wisdom (Seventeenth Century).

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January 4th, 2012

What I’ve Learned from Others

This post discusses lessons I have learned from wise people to make me a better lawyer.

James A. von der Heydt. Patience and a calm demeanor. A recognition the answer is found with an understanding of the facts and meticulous research.

Lewis Gordon. Keep a sense of humor. Law is hard enough so learn to laugh. Remember the environment and advocate for it whenever possible.

Simon Rifkind. All trials are plays. Cast your client as the hero. If client must be the villain cast as a lovable villain. Judge trials are the same as jury trials except judge is a sophisticated theatre goer. Never waive opening statement.

Phil Carter. Professionalism. Look like a lawyer and act like a lawyer. Never underestimate your opponent.

Robert Tjossem. The best defense is a strong offense. Analogy is that of a bullet train. With your argument stay on your track, go at full speed to the station. Watch as the other side moves to your track and gets run over.

Charlie Burdell. Graciousness with confidence. A non ending sense of fairness. The quality of being a friend to many.

Rod Pierce. Fearless and unflappable advocacy. Unfazed in defeat; one battle does not make the war. Prepare for the next battle.

John Strauss. A fierce belief in the case. Strike first. Unwavering confidence in winning the case.

Rob Kornfeld. Accept the winners turn down the losers. Never rest on success. Stay on the horse and ride into the next one.

Scott Bowen. Reasonableness in attorney’s fees. Help those that need help. Firmness with compassion.

Steve Lingenbrink. Community involvement. Involvement by helping others with collateral benefit of attracting clients.

Bob Dawson. Think outside the box. Big defendants only respect the power of a quality well prepared case. Try the case and tell the story.

My Wife. Kindness to others, especially clients and staff.  A confident and happy legal assistant is a quality legal assistant. Nice to all without pretense.

Still Learning. I continue to learn from others. The day I stop learning and growing as a lawyer is the day I retire. At my rate this will be a long time.

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January 1st, 2012

First Week of January-Take Control

As we start the year many have made a New Year resolution. Some will resolve to lose weight. Some will resolve to exercise. Some will resolve to break a bad habit.

How about resolving to take control of your life? This means you taking the initiative to make things happen. This means acting instead of reacting.

When taking the initiative use your intuition and common sense. If something does not feel right deal with it immediately up front instead of passively letting it unfold to your detriment.  Trust your instinct and first impression which are usually right.

Practice taking control of the small stuff as well as the big stuff. Actively live every moment doing what you know is correct. Move methodically to your long term goals recognizing each day is a step to fulfillment. Take control and make a difference every day.

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December 28th, 2011

Movies Every Trial Lawyer Should See

The week between Christmas and the New Year is a good week for movies. Below is my list for lawyers:

To Kill a Mockingbird. A great book every lawyer should read and a great movie every lawyer should see. As usual the book trumps the movie, except the movie has Gregory Peck acting like every lawyer should act. If we follow the model of Gregory Peck we will look like a lawyer, talk like a lawyer, and have the demeanor of a lawyer at home, in the community and in the courtroom.

My Cousin Vinny. This is a classic every lawyer will love. It’s funny, and it’s good. We see professionalism with the prosecuting attorney. We see a difficult judge. We see great cross examination. And we learn a whole bunch about the 1963 Pontiac Tempest which had positraction and was driven by the killers and how it cannot be mistaken for the 1964 Buick Skylark driven by Vinny’s cousin.

Hot Coffee. This is a 2011 documentary begins with the infamous McDonalds case, tells the brutal truth about the case, and continues to document corporate America’s and the Chamber of Commerce’s methodical campaign against legitimately injured people and the judges who have the courage to rule  for the little guy. I pay every staff member who watches the documentary a $50 bonus.

Witness for the Prosecution. This movie is worth watching because the great actor Charles Laughton plays the English barrister defending his client against a charge of murder. The movie has excellent cross examination scenes by Laughton. It is also fun to watch how a case is tried in England the land where our common law was born.

Twelve Angry Men. This classic with actors including Henry Fonda, Jack Warden, Lee J. Cobb, Jack Klugman and E. G. Marshall is the best jury movie ever made. It gives all trial lawyers hope in that convincing one bright dynamic juror may mean winning the case.

Compulsion. This movie is a must because it is a take off on Clarence Darrow’s life saving defense in the famous Leopold and Loeb thrill killing case. Darrow is played by Orson Wells who does a great job in playing the finest trial lawyer who ever lived. Darrow’s closing is recounted by D. McRae, The Last Trials Of Clarrence Darrow:

“I am pleading for the future ,” he said huskily. “I am pleading for a time when hatred and cruelty will not control the hearts of men, when we learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.” Darrow felt his own eyes moisten when he saw that [Judge] Caverly was crying…silent tears… powerful enough to alter the shape of the judge’s twiching mouth.

“I was reading last night of the aspiration of the old Persian poet, Omar Khayyam,” Darrow murmured, as his own tears began to roll down his crevassed face. His voice, however, remained firm. “It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the heart of all:

So I be written in the Book of Love

I do not care about the Book above

Erase my name or write it as you will

So I be written in the Book of Love.

Darrow’s head was bowed, and his eyes were filled. And then aften ten long seconds, he looked up again and nodded to the judge. Slowly, Darrow returned to his seat, the silence following him with gathering force. The quiet held, as if no one dared break the spell.


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December 25th, 2011

James and Eckhart (We are the Son)

I was converted in my bedroom. I was in perfect health. I was in no way troubled by my soul. A friend sent me a copy of Professor Drummond’s Natural Law in the Spiritual World. I soon read this passage and saw the light: He that hath the son hath eternal life, he that hath not the son hath not life. This is because my reading of Meister Eckhart came to focus:

St. John says “See how great is the love that the Father has shown us, that we are called and are the children of God.” He says not only “we are called” but “we are. “So I say that just as we cannot be wise without wisdom, so we cannot be a son without having the same being as God’s son.

It is written: Beloved, we are the son’s of God, and we shall be like him (John 3:2). So I say God could not make me the son of God if I had not the nature of God’s son.

William James, The Varieties Of Religious Experience; Meister Eckhart (14th Century Mystic); (edit by PAT).

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