January 1st, 2013
Today as we get ready to start a New Year, and my first full year as a lawyer, John Henry talks about habits of a quality lawyer. Habits for me to develop and stay with throughout my legal career. The habits center around the concept “Do It Yourself.”
The Great Artist. John Henry begins by telling me a story about a William Cumming art exhibit he attended several years ago where Mr. Cumming spoke in the afternoon. When Mr.Cumming took questions a young man asked him if art school teaches a person how to be an artist. William Cumming looked at the young man in silence for several seconds and then said an artist is an artist and does not need to be taught how to be an artist by an art instructor. John Henry says the same is true of a quality lawyer.
Do the Research. John Henry subscribes to Westlaw and uses Westlaw Classic. He rarely uses Westlaw Next. This is because he does not use legal secondary sources such as ALR or CJS. John Henry teaches to arrive at my own arguments given the story of my case and original legal sources. Like an artist we write from the heart. We never rely on a brief written by another lawyer.
One With Client. John Henry teaches to bound with the client. My client meets with me when we sign the case. I listen to my client tell her story. I have my client speak in the present tense and show me what happened and her reaction. This allows me to see as close to first hand how my client is impacted. I go to my client’s home and spend time with her to get into her skin to understand her injury. My client and I answer interrogatories together. My client and I prepare for her deposition together. We do this by discussing the elements of the case and telling the story in a clear compelling way.
Believe in Myself. John Henry says the key is to believe in myself every step of the way. Like William Cumming I am an artist in the law. When I know the facts inside and out, have my client’s story internalized, and feel similar emotions to my client I am ready to trust myself. No one can show me how to try the case, and this is why I am a legal artist.
December 25th, 2012
The first step is “a loosening of the body, without which” nothing can be properly done. This “physical loosening must … be continued in a mental and spiritual loosening, so as to make the mind not only agile, but free; agile because of its freedom, and free because of its original agility; and this original agility is essentially different from everything that is usually understood by mental agility.
Between the two states of a relaxed body and spiritual freedom “there is a difference of level…[reached] by withdrawing from all attachments [a] becoming utterly egoless: so that the soul, sunk within itself, stands in the plenitude of its nameless origin.”
To accomplish actionless activity instinctively “the soul needs an inner hold, and it wins it by concentrating on breathing. … The breathing in, like the breathing out, is practiced again and again… with utmost care. One does not have to wait long for results. The more one concentrates on breathing, the more the external stimuli fade into the background.” Soon we become detached from all stimuli. We only know and feel our breath. Our breathing slows to the point it also escapes our attention.
“This state, in which nothing definite is thought, planned, striven for, desired or expected, which aims in no particular direction and yet knows itself capable alike of the possible and the impossible, so unswerving is its power-this state, which is at the bottom purposeless and egoless …[is] truly spiritual.”
Eugen Herrigel, Zen in the Art of Archery (1953).
December 20th, 2012
There is nothing more generous than a person who sees only the relation of the world with the Absolute “in all troubles and the most likely of dangers.” It may be a matter of facing death, marching into the unknown, or working like a slave for the downtrodden. In all such things the person finds the fullness of his relationship with the Absolute engulfing him instantly.
“An army of soldiers with such a spirit would be invincible. For faith lifts and expands the heart above and beyond all that the senses fear.” It is a delight to be one with the Absolute as there is a confidence in one’s actions which makes everything acceptable. There is also “a certain detachment of soul which enables us to handle any situation and every kind of person.”
With faith in the Absolute “we are never unhappy and never weak.” This is because we always see the Absolute “acting behind happenings which bewilder our senses. Srticken with terror, our senses suddenly cry to the soul: ‘Unhappy wretch, now you are lost and there’s no hope of rescue!’ The robust voice of faith instantly replies: ‘Hold fast, go forward and fear nothing.’
Jean-Pierre De Caussade, Abandonment to Divine Providence (d.1751)(First Image Books edition 1975)(Chapter III (4) at 64)(edited by P.A.T.)
December 12th, 2012
I live, yet not I, but the Absolute liveth in me. Only when I become as nothing can the Absolute enter in and no difference between the Absolute and me remains.
“This overcoming of all the usual barriers between the individual and the Absolute is the great mystic achievement.” In mystic states the person becomes one with the Absolute.
This is the “everlasting and triumphant mystical tradition,” unaltered by race or creed. “In Hinduism, in Neoplatonism, in Sufism, in Christian mysticism, in Whitmanism, we find the same recurring note, so that there is about mystical utterances an eternal unanimity which ought to make a critic stop and think, and which brings it about that the mystical classics have, as has been said, neither birthday nor native land.” Perpetually telling of the unity of man with the Absolute “their speech antedates languages, and they do not grow old.” William James, The Varieties of Religious Experience (1902)(Mysticism).
An example of a mystical experience is cited by James:
In my consciousness of the Absolute which comes to me sometimes a presence not a personality but something in myself makes me feel a part of something bigger. In these times I feel myself one with the grass, the trees, birds, insects, everything in Nature. I exalt “in the mere fact of existence, of being part of it all-the drizzling rain, the shadows of the clouds, the tree trunks, and so on.” As the years go by such moments continue to come, but I want them continually. This is because I know “so well the satisfaction of losing self in a perception of supreme power and love,” that I am happy when this perception is constant. (James citing Starbuck’s Collection).
December 6th, 2012
“The collective name for the ripe fruits of religion in a character is Saintliness. The saintly character is the character for which spiritual emotions are the habitual centre of personal energy; and there is a certain composite photograph of universal saintliness, the same in all religions, of which the features can be easily traced:”
1) The saintly person has a feeling of a life beyond selfish interest. This is combined with a conviction of the existence of an “Ideal Power.”
2) The saintly person has a sense of a friendly continuity with the “Ideal Power” and her own life.
3) The saintly person becomes elated and free as the outlines of confining selfhood are absent.
4) In the saintly person there is a “shifting of the emotional centre towards loving and harmonious affections,” towards “yes” rather than “no” without regard to what others think.
According to William James these saintly inner conditions have the practical consequence of:
a) Asceticism- The lack of concern for material goods and comfort. A giving up of fighting for worldly pleasure.
b) Strength of Soul- A lack of fear and anxiety, replaced by a “blissful equanimity.” This is because of a trusting of the natural order of things.
c) Purity- As the “sensitiveness to spiritual discords is enhanced, [there is a] cleansing of existence from brutal and sensual elements… .”
d) Charity- There is “a tenderness for fellow creatures. … The saint loves his enemies, and treats loathsome beggars as brothers.”
William James, The Varieties of Religious Experience, (1902)(Saintliness)
November 29th, 2012
Today John Henry talks to me about “professionalism.” He begins by telling me I will soon develop a reputation amoung lawyers, judges, court clerks and bailiffs, court reporters and people in the community. He tells me my reputatuion in the long run is all I have. John Henry makes a big deal about “professionalism.” He tells me I must practice law at my highest level at all times. He tells me I must look like a professional, speak like a professional, write like a professional and be a professional.
Look Like a Professional. John Henry says dress like I am going to cout. This means a suit or sport coat with a pressed shirt and tie. This means pressed slacks and dress shoes that are shined. John Henry likes Hickey Freeman for suits and sport coats. He wears Gitman shirts. His shirts are dry cleaned. He likes Allen Edmunds shoes. He wears a belt matching his shoes. He wears subtle colors. John Henry fits the stereotype of a successful lawyer. He says “to be succseeful look successful.”
Speak Like a Professional. John Henry reminds me we earn our living by talking and how we speak is essential to our success. First, think before I speak. Refrain from senless bable. He reminds me of the Lincoln quote “It is better to remain silent and be thought a fool, than to speak and remove all doubt.” He tells me to speak with power. This means speak in nouns and verbs. Eliminate modifiers- adverbs and adjectives that suck the blood out of a message of nouns and verbs. Words that have no place as far as John Henry is concerned are: pretty, little, probably, maybe – any word or phrase that telegraphs weakness, doubt or uncertainity.
Write Like a Professional. As well as speaking we earn our living by writing. John Henry gives me Strunk & White, The Elements of Style, and tells me to read it from cover to cover. Read it every year until it is engrained into my writing (and speaking). He tells me never to write something I do not want the world to read. He says this is especially true with e-mails. On writing he likes to stick to the point, make the point and move to the next. He likes short paragraphs. He likes the rule of three.
Timeliness. John Henry says always be on time. Plan ahead. there is no excuse for being late. John Henry says timeliness means returning telephone calls, and correspondence. Timeliness also means meeting deadlines, including discovey deadlines.
Kindness. John Henry explains a professional is kind. He says “you never know who you are being nice to.” John Henry says learn the other person’s story and therefore who they are. Here John Henry says the secret is listen. John Henry likes a “soft cross examination.” He prefers to make the witness his rather than destroy the witness.
November 20th, 2012
I feel fortunate. I have landed an associate position. Not a traditional associate position, but a job working for an experienced lawyer-a personal injury (PI) lawyer. He is a member of the law firm Weiss Henry, Jones, & Bennett (WHJB).
In a traditional law partnership the partners collectively share their profits, or divide them based on a formula at the end of the year. The partners have associates that they bill at a rate at least twice the amount they pay the associate. In this way the law firm can represent multiple clients through the use of associates, and make more money along the way. This traditional formula works for lawyers who bill on an hourly basis.
My cases are billed on a contingency fee basis. This means our law firm or my partner John Henry (JH) does not bill on an hourly basis. He represents injured people without taking a retainer from the client and without billing them for his time. Rather he takes a percentage of the recovery-generally one third. At WHJB the partners each have their own cases and do not share their fees. The partnership is a cost partnership meaning the only sharing is with common overhead such as rent, the receptionist and our internet law library. JH gives me smaller cases and I work them to completion with his help. He pays a salary and keeps his share of the contingent fee.
Most important for me JH is teaching me how to be a lawyer. JH says law school is necessary to become a lawyer but that’s about it. JH says law school has little to do with how to be a lawyer. JH says being a PI lawyer is about two things. First is helping the little guy against the big insurance company. JH says in a car collision case the defendant runs over the plaintiff and then the defendant’s insurance company runs over the plaintiff . The PI lawyer stands in the way of the insurance company and gets fair value (justice) for the little guy. Second the PI lawyer makes a decent living along the way. According to JH this means taking cases he has a likely chance of winning. Sometimes JH loses. He says this is what happens when we try cases on a regular basis.
JH says insurance companies also run over lawyers who do not try cases. This is because they know they can settle the non trial lawyer’s cases for minimum value since the insurance company has no risk. It is only when the insurance company has a risk of loss at trial that they may pay fair value. So JH is teaching me how to be a trial lawyer. I’m about to meet a new client so I have to go. Soon I will report on my first lesson on being a trial lawyer.
October 28th, 2012
Zen says enlightenment comes in everyday actions. There is no action that is taken for granted. Rather every action is lived fully in the moment without thinking about the past or the future.
Fritjof Capra, in The Tao oF Physics, discusses Zen Practice as follows:
We are fortunate to have a wonderful description…in Eugen Herrigel’s little book Zen in the Art of Archery. Herrigel spent more than five years with a celebrated Japanese master to learn his “mystical” art, and he gives us in his book a personal account of how he experienced Zen through archery. He describes how archery was presented to him as a religious ritual which is “danced” in spontaneous, effortless and purposeless movements. It took him many years of hard practice, which transformed his entire being, to learn how to draw the bow “spiritually”, with a kind of effortless strength, and to release the string “without intention,” letting the shot “fall from the archer like a ripe fruit.” When he reached the height of perfection, bow, arrow, goal and archer melted into one another and he did not shoot, but “it” did it for him.
F. Capra, The Tao oF Physics, (Shambhala 2010) at 126.
October 4th, 2012
This post takes from my last three trials, Trial Lawyer’s College, The Tao Of Pooh, and The Tao of Physics.
Preparation. In any phase of trial from voir dire to closing argument it is important to prepare. The great Clarence Darrrow memorized poems and quotes he planned on reciting during argument. It is foolhardy to go into any phase of trial without at least a preliminary outline on what needs to be covered. In my trials I write out my opening statement, my direct and cross examination questions and my closing argument.
Plastic v. Spontaneous. Although having a planned presentation or preconceived idea of how a phase of trial will go makes sense, to blindly stick to the script is plastic. It is living outside the moment of trial. Most important sticking strictly to a prepared script results in trying the case without being able to move to where the jury is at the moment. To try the case where the jury is at the moment we must also be in the moment. This can only be done if we spontaneously live in the moment with the jury.
The Way of the Tao. When we try the case in the way of the Tao we recognize the concept of change. We recognize the changes in a trial do not usually occur because of our plastic presentation. “[R]ather [the changes in trial occur] as a tendency which is innate in all things and situations.” F. Capra, The Tao of Physics at 116 (5th Ed. 2010). The moments ot the Tao are not forced, but occur naturally and spontaneously. Id. “Spontanety is the Tao’s principle of action, and since human conduct should be modeled on the operation of the Tao, spontanety should also be characteristic of all human actions.” Id.
Acting in Harmony with the Trial. For the Taoist, acting in harmony with the trial means acting spontaneously according to our true nature. This means trusting our intuitive intelligence which is innate and in the moment. We do not force ourself. Rather we adapt our action to the trial moment. “In the words of Huai Nan Tzu, Those who follow the natural order flow in the current of the Tao.” Id. at 117.
Prepare and Forget. To try the case at the highest level we discover our client’s story and show the story at trial. In each phase of trial we have imaged the phase and prepared accordingly. Once we get to the phase we forget who we are (meaning any plastic presentation), live in the moment and believe in our innate intuitive nature. We include the jury as we live in the trial moment.
September 23rd, 2012
Just lost a “MIST” case. For those who do not know a “MIST” case is what we call an automobile collision case with little or no visible damage to the colliding cars and injuries to plaintiff that cannot be seen. Examples include injuries to soft tissue- thus, Minimum Impact Soft Tissue=”MIST.”
In the case I tried techniques learned at Gerry Spence’s Trial Lawyer’s College (TLC). The techniques are simple. First know yourself and how you feel about the case. Second, tell the truth to the jury about the case especially concerns you have. Third, relate to the jury in a non lawyer natural common sense way. Fourth, show and tell the story. At all times include the jury.
Losing is hard. Losing causes doubt. Doubt about taking a case to trial. Doubt about being a trial lawyer. Doubt about what could have been done differently. But on reflection I believe losing is an inevitable result when we try tough cases. There are “MIST” cases I have been successful prosecuting, and a legitimately injured plaintiff received fair compensation. On reflection I see that it is important to try tough cases. On reflection I have no doubt about the TLC Method.
Trying tough cases gives a legitimately injured plaintiff a shot at justice when the insurance company says pound sand and take little or nothing for your injuries. The only way to succeed in a tough case with little or no offer is to try the case. By taking on the insurance company in a “MIST” case we stand up for an injured person who deserves fair compensation. This is our charge as a trial lawyer.
Losing is an essential part of the success equation. All successful people have been losers. For me I learn far more from my losses than from my successes. A Loss causes reflection. Reflection leads to retooling techniques. Retooling techniques makes me better. Plus, insurance companies know the only lawyer who can win a case is the lawyer who will try the case. Insurance companies know we will lose sometimes and so will they. When an insurance company deals with a lawyer who will try the case it treats the case more seriously which translates to paying fair value more often in cases where the injured plaintiff is represented by a known trial lawyer.
So I move on to the next trial. I have learned from my loss. I look forward to trying my next case using the TLC Method- total honesty in a pure and simple way like a regular guy rather than a trial lawyer with a trial lawyer mask.