Wyzga On Words

Samuarai Lawyer And The Book Of Wind.

Patrick Trudell writing as Zen Lawyer Seattle (patrick@ktbllaw.com) posted "Lessons from Musashi - The Book of Wind" on 24 February 2012.  This post was preceded by “Lessons from Musashi-The Book of Water, Lessons from Musashi - The Book of Earth, and Lessons from Musashi - The Book of Fire.

For those of you who followed this blog's posts entitled Samuarai Lawyers (Part 1, Part 2, and Part 3) you know that Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada, commented on the Book of Water post.  Wagner spent a number of years living in Japan and practicing Aikido. 

I asked him for his thoughts on the Book of Wind post.  Why?  Because I am fascinated by the practice of law as between these two lawyers living in adjacent countries.  Things are not so same-same as we might think.  I am curious to know what others think and how they practice.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source.  Wagner's comments follow each excerpt.

"In his Fourth Book, The Book of Wind, Musashi concludes by stressing the traits of a warrior. Applied to the trial lawyer these traits are:

Lack of Pretense. The trial lawyer is without pretense. The trial lawyer is engaged in a career long quest to develop his spirit in the proper manner. Musashi’s, Book of Five Rings (Translated by Stephen Kaufman, Hanish 10th Dan) (1994) at 83-84.  His commitment is to his cause rather than to himself. The trial lawyer “does not go around telling everyone he is a great [trial lawyer]. He permits his actions to govern others’ responses.” Id. at 92."

Lack of pretense -- I agree.  Lawyers should not be pretentious. 

"Study Others-Be Yourself. Musashi teaches the importance of understanding the “reasons and philosophies of other systems” to benefit from our own. “Without comparison you have no reference point with which to judge for yourself and decide how to properly develop your own self.” Id. at 84. We should study other trial masters to reinforce our understanding of ourself. In this way we constantly reevaluate ourself.  Remember though to be yourself. When we change our methodology because of others we lose ourself. “Eventually you are going to have to come back to your natural state. So why leave it in the first place?” Id. at 96."

Study others and be yourself -- I agree.  It is especially important to study witnesses and judges so we can understand what they are thinking, despite the masks they may try to erect.  With our own witnesses, we have to realize that no matter what we do interms of preparation, they will "revert to type" after a while.  It is better to go with the "type" from the get go than to fight against it. 

"The Big Picture. Always take the broader view of the situation. “Do not concentrate on details. Keep only one thing in mind: that thing is to beat your enemy. In this way your spirit will continue to grow and you will always be conscious of your surroundings and the situations that appear.” Id. at 95. When we are aware of all possible outcomes we “may not even have to do battle because of superior intelligence based on perception and intuition. It is possible to win a fight without ever having to go into combat.” Id at 93. This occurs when the trial lawyer knows the strengths and weaknesses of her case and is known by the opposition to try her cases."

The big picture -- We get back to my earlier-stated objections to seeing the other lawyer as the enemy.  However, (at least in the context of civil litigation) if we see the conflict between the parties as the enemy, then things improve and we understand the proper way to focus on the situation.  The advice not to focus on details is a recipe for disaster, since that is often where the strengths and weaknesses of a case lie.  Try doing a fraud claim without questioning every detail!  I prefer to say that one should be aware of the details, but do not get bogged down in them so that one is distracted from the main goals.  Try this visual -- the guy running point on a patrol is so concerned with trip wires that he keeps looking at the ground and fails to see the enemy patrol standing in the middle of the trail in front of him!

"Quickness over Speed. Trials are competitions. In any competition rhythm and timing are essential. Musashi recognizes this and stress quickness over speed. “Quickness gets inside of speed and enables you to control the situation… . When you advance, … advance quickly and get immediately to the point. Your speed is dependent on the speed of your [opponent]. … [A]djust yourself  accordingly and do not think in terms of being faster and slower. … [I]f you are constantly moving fast you will have no time to maintain your poise and timing.” Id. at 97. “Always move naturally and calmly… .” Id. at 98. Quickness in trial happens when we focus on the present as in the words and body language of the jury in jury selection and the witness during testimony. Rather then concentrating on prepared notes live in the moment of the trial."

 Quickness over speed -- Again, I agree.  However, we should add to this what one of my sensei said.  "To be fast, go slow."  By this, he meant to take the time to do things perfectly and in a smooth, fluid manner rather than rushing around and doing things that need to be corrected.

 

"Trial Lawyer as Warrior. In today’s legal climate the Jerry Spence metaphor of the trial lawyer as a warrior is apropos. Insurance companies rely on lawyers unwilling to try their cases. Insurance companies base low offers on this reliance. In Musashi’s time it took a warrior to get justice for the weak. In today’s economic climate it takes a lawyer willing to file his case and prosecute it through a jury trial to get justice for the injured. When the insurance company sees such a lawyer they often pay fair value “because they would prefer to fight someone else.”

Comments on insurance lawyers -- As a defence lawyer, I must say that I have almost never been given unreasonable instructions.  If anything, the insurers have been willing to pay what I feel are dubious claims when the cost of defending them is too high.  We do take the personalities of plaintiff counsel into consideration, but I have never backed off of a trial because of who was on the other side.  I have backed off of settlement, though, when counsel is known for advancing untenable positions.  I have worked hard to build a reputation as someone who is always thoroughly prepared and who does not take "wing and a prayer" positions.  If I say or do something, it is because I believe in it.  My offers are not unreasonably low or unreasonably high, since such offers serve only to inflame the situation.  When I encounter counsel who are similarly minded, we have in virtually every case been able to reach a negotiated resolution. 

What do you think?

How do you practice?

What do you want others to know about the way in which you practice?

Samuarai Lawyer In Three Parts. Part 1.

 

Patrick Trudell writing as Zen Lawyer Seattle (patrick@ktbllaw.com) posted “Lessons from Musashi-The Book of Water” on 24 January 2012. This post was preceded by Lessons from Musashi - The Book of Earth, and followed by Lessons from Musashi - The Book of Fire.

On January 24th I was speaking with Eric Wagner, a longtime friend who is also a fellow lawyer and life observer in Canada.  I knew he had spent a number of years living in Japan and practicing Aikido.  I asked him for his thoughts on the Book of Water post.  He was generous with his comments. So much so that his remarks will cover three days and conclude with an article relevant to this topic recently posted in the Law Society of British Columbia's monthly publication called The Advocate.

Wagner's preference on this matter would be to say that Trudell's “metaphor” goes off track in some important ways, while giving some valuable teaching in others.  His remarks are not to be considered a full frontal attack on the man and his ideas, but rather a gentle reminder that he seems to be venturing off course sometimes.  If Trudell truly understands Japanese martial arts, the approach will be familiar and appreciated, since it is what practitioners like Wagner do in training.

Excerpts from Zen Lawyer Seattle will appear indented and italicized as befits quoting from a source.  Wagner's comments follow each excerpt.

 

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

When I first started practicing, I thought it was appropriate to read Musashi the way this lawyer seems to.  After all, I was a warrior/lawyer going forth to do battle for the forces of good (my paying clients).   This, however, now seems to be incorrect.

Musashi was writing for and about samurai in feudal Japan.  These were folks who were duty bound to follow their lords’ and superiors’ orders without question.   The challenge was to develop the skills to carry out those orders without going crazy in the process.   Some people say that the appeal of zen and its emphasis on stillness and quiet were in response to the need to deal with the voices of all the people the samurai killed and were about to kill.  Samurai really had no discretion.

I have a great deal of respect for the samurai, but I refuse to make them out to be anything other than what they were.  While there is a tendency among some people to romanticize samurai, they were killers above all else.  Unquestioning and effective killers.  That does not change just because they may also have been able to recite poetry or do calligraphy.

Modern day lawyers, on the other hand, are tasked with developing and exercising discretion at every turn.  We are not just blindly following orders.  We have to recommend and evaluate courses of action.  Sometimes we must refuse to do as our clients say.  It is not at all like what the samurai were doing.

Viewing oneself as a samurai / lawyer bound to destroy “the enemy” on the other side would seem to make one overly combative as a lawyer.  Negotiating a settlement with such a lawyer would be difficult at best.  Such a view also fails to take account of the fact that there is often a need to have a continuing relationship with that person on the other side.  Separated and divorced parents need to work with one another where the kids are concerned.  People in the business community will continue to cross paths and a reputation as a ruthless and eager litigator will poison the well pretty quickly. 

 

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.

If I as a lawyer “seem to be doing nothing,” it will not go well for me with a client who is paying me fees to do something.

 

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.

As for not prejudging – that is bang on.  It is much better to approach a matter in a neutral manner, as should a judge, than with a view overly slanted in favour of one party or the other.  This helps one to see the entire picture much better.  Doing this requires discipline and experience, which is along the samurai lines but also along the lines of pretty much any discipline, whether it be flower arranging or playing the violin.

Part 2 continues tomorrow.

Tell Me About Unity & Strength.

THE BUNDLE OF STICKS

A CERTAIN Father had a family of Sons, who were forever quarreling among themselves. No words he could say did the least good, so he cast about in his mind for some very striking example that should make them see that discord would lead them to misfortune.

One day when the quarreling had been much more violent than usual and each of the Sons was moping in a surly manner, he asked one of them to bring him a bundle of sticks. Then handing the bundle to each of his Sons in turn he told them to try to break it. But although each one tried his best, none was able to do so.

The Father then untied the bundle and gave the sticks to his Sons to break one by one. This they did very easily.

"My Sons," said the Father, "do you not see how certain it is that if you agree with each other and help each other, it will be impossible for your enemies to injure you? But if you are divided among yourselves, you will be no stronger than a single stick in that bundle."

In unity is strength.

TIP:    

1. Some days you have to go back to the basics to "get it."
2. Nothing is more basic than a story.
3. For each problem there is always one elegant solution; often you will find it in a story.

 

Do You Or Do You Not Scroll The Text When Playing Videotaped Deposition Testimony?

Typically, depositions are now recorded in some mode of videography to preserve the testimony in real time.

Later, during focus group research, mock trials, settlement conferences, mediations and courtroom testimony clips of the witnesses' depositions may be played  for a variety of purposes.  For example, the litigation consultant may wish to test the credibility of a particular witness; the attorney may wish to show some discrepancies in the opposing party's expert opinions; or the trial attorney may use the film in place of a witness who cannot attend trial, to impeach a witness or to further develop the legal story.  Many trial attorneys are familiar with a trial tool called Sanction Litigation Software to make powerful use of deposition testimony.

More often than not in each of these scenarios and others a scrolling text of the testimony appears in sync with the deponent's spoken words. As one who enjoys foreign films I've gotten accustomed to watching the action on the screen while reading the subtitles.  The experience is similar when I attend an opera in its original German or Italian; but the "subtitles" often scroll across the top of the stage.

However, no matter how carefully one watches and listens, the effect is the same: you may end up sacrificing a bit of visual and auditory attention to get the best of both worlds: accurate understanding and interpretation of the story being told.

I raise this so you might ask yourself whether the synced text is a help or a hindrance to advancing the decision-maker's comprehension.  In which situations does it help you tell the legal story and persuade to your point?  How might it hinder you from getting that point across? 

I believe it comes down to the purpose for which you are using the clip of the deposition testimony while keeping in mind decision-makers learn differently.  One might be distracted by the scrolling text while another needs it to clarify what she hears. 

To decide whether to scroll or not to scroll for comprehension, recall what you know about the best PowerPoint presentations.  Or the presentation secrets of Steve Jobs.  Often, more is less (yes, I meant to write it that way.)

TIPS:

1.    Ask yourself what you want the decision-makers to attend to:  Witness credibility?  Veracity of a statement or description?  The certainty of a conclusion versus an opinion?  Relevance?  Consistency of testimony?  Verbal cues?  Non-verbal tics?  Client likability? And the like.

2.    What is the setting?  Focus group research versus mock trial versus mediation, and so on.

3.    What do you want to come away with that will enhance your chance at verdict success?

4.    In focus group research you can do it both ways: play the testimony with and without the sound and synced scrolling text.  You can inquire of the research participants: who noticed what?  some may have attended to the non-verbal cues of the deponent; others may pick up on tone of voice and the emphasis (or not) on certain words.

5.     Once you determine the research or trial strategy then you can employ the tools to accomplish it. 

6.    Think before you scroll.

 

Q&A Tuesday: What Three Points To Sharpen My Writing And Speaking?

 

Q:     If I could sharpen only three skills to enhance my writing and speaking, what would those be?

A:     Keep it simple.

TIP:    To advance the action in a story,  use the present tense,  For example, "She walks."  "She drives."  She sleeps."  And so on.  The story will take on a frame-by-frame action that the listener more easily falls into like inhabiting a virtual world.  To reflect on past actions, use the past tense.  For example, "She walked."  "She drove." She slept."

TIP:    To state ideas more clearly, use the active voice over the passive voice.   The passive voice uses forms of the verb "to be."  It takes some thought by the listener to interpret a passive sentence.  For example, "The dinner was eaten by them" can become "They ate the dinner."  Or, "The boy was saved by the doctor" becomes "The doctor saved the boy."  And so on. Of course, how you frame what you say depends on what you want to say.  So be sure of that to begin with: what have you identified as being the story you must tell?

TIP:    Simplify your words to single syllable ones.  So often folks will use their professional jargon in professional settings.  The problem is not everyone understands the jargon.  Jargon can obscure clear writing and speech.  Seeking one-syllable words to express oneself can sharpen (rather than dumb down) what we want to say.  For example, "He failed to render assistance" becomes "He did not help." "The vehicle entered the intersection at a rapid rate of speed" could become "The car sped into the intersection."

What other tips have you found helpful?

What Can Lawyers Learn From Silence In Presentation?

All that noise!  Any more the sound of silence seems as ancient history as Paul Simon's turtleneck and Art Garfunkel's  hair.

Maureen Dowd writing for the NYTimes, "Silence Is Golden," put this thought in my head.  Excerpt.

"The sounds of silence are a dim recollection now, like mystery, privacy and paying  attention to one thing — or one person — at a time.

As far back as half-a-century ago, the Swiss philosopher Max Picard warned: “Nothing has changed the nature of man so much as the loss of silence,” once as natural as the sky and air."

All you have to do is listen to know there are few sanctuaries left to us where one can be with silence.  And now there is, of all things, a silent movie.  What nerve, what imagination, what risk to make a silent movie in this day!  "The Artist" may be just what we need to remind us how powerful is silence.  Excerpt.

"It turns out that all the skeptics were wrong, and it was clever to do a silent movie in 2011, as an antidote to our modern plague of pointless chatter. It’s a weird paradox that the essential feature of technology is talkativeness, but usually without the sound of human voices attached.

In the case of “The Artist,” silence is not only golden, it’s a reminder of how much you can articulate without words. If you take away the language, green screens and 3-D glasses, the feelings — pride, vanity, envy, fear, love — can be more primary and fascinating."

What is so powerful about silence?  Silence is the quiet between the notes that give us music.  Silence gives us pause from all that numbing noise so we can reflect, even if only for a moment.  Silence allows another to be heard.

Why are we afraid of silence, especially in the courtroom? People expect us to be talking, conducting jury selection, delivering opening statements, examining witnesses, making objections, and so on.  If a lawyer is silent - for even a moment - maybe a juror will think that she has lost her place or does not know what to say. Maybe the lawyer herself is afraid that if she stops she will lose her place or forget what to say.

Here's an old storytelling tip I learned decades ago from Jay O'Callahan: "Dare to pause!"  Previously I wrote about Jay's advice and it's enduring impact on me.

TIP:    As you listen the case story out of your client, let silence fill the office to give space for more of the client's words to eventually fill in the story.

TIP:    As you rise to conduct voir dire, ask a question and let it hang there for a moment before inviting a prospective juror to speak.

TIP:    As you walk to deliver your opening statement, put down the notepad, no one gets hurt, and let the silence build the expectation of what you will say. 

TIP:    If you lose your place while speaking, give yourself the gift of a moment of silence, breathe and continue - the breath will have gotten you back on track.  If you have to refer to your notes you are showing the jurors that you are human after all.  We like people like us.   

TIP:    Learn to embrace silence as a powerful tool of communication and persuasion.

"Hazanavicius recalled that at a French screening of the movie, a group of teenagers approached him. “They thanked me for letting them hear the silence,” he said. “It was touching to discover that these young people, always with their iPods, could like real silence.

“I compare it to the zero in mathematics. People think it’s nothing, but actually it’s not. It can be very powerful.”"

 

Q&A Tuesday: What Does Legal Writing Have In Common With Walt Disney?

Q:    What does legal writing have in common with Walt Disney?

A:    Before you put pen to notepad or fingers to keyboard you must identify the story you want to tell.  Only after identifying the story will you be able to shape and deliver it.

Walt Disney was a master of the storyboard to identify the story.  This simple idea made him the single most influential fellow in animation.

Click here to view the short process.

TIP:    Before you write know the bones of the story you need to tell on behalf of your client, issue or project. 

TIP:    The bones of a story are the skeleton or major elements.   

TIP:    Some folks find it useful to sketch out their story in icons or stick figures. Others use key words.  And still others rely on shorthand phrases or a mnemonic.

TIP:    Imagine that your story will be a Tweet; you have 160 characters to work with.  What is the story? 

TIP:    Reduce that Tweet to a text.  What is the condensed version of your story? 

TIP:    Now that you have created the bones of your story you can flesh out the rest by writing your brief, argument, opening, and so on.

Q&A Tuesday: Grief & Loss & Damages

Q:    How do I identify the grief and loss I need to prove damages in a wrongful death case?

A:    Go to what the deceased held in their affection.  Tell that story.  

In a materialist world such as ours, we tend first to list the achievements and accomplishments of those we have lost.  It's natural.  It's like asking someone at a cocktail party, "What do you do?"  The answer may open the door to a story we can recognize and respond to.  It's the great leveler.

However, what one did or accomplished in one's life is not the whole story; and, in fact, may be the least of what was lost in a wrongful death case.   Look to what the deceased held in their affection.  What uplifted her, charmed her, delighted her, perplexed her, and so on.  Tell that story.

How did those in her family and community benefit by what she held in her affection?  What was lost when the fabric of the family, the neighborhood, the community, the town was rent by her sudden passing?  Tell that story.

I recommend three books I have among many on my shelves: 

1. Grief and Loss by Robert T. Hall and Mila Ruiz Tecala
2. Black Sheep and Kissing Cousins (How our family stories shape us) by Elizabeth Stone
3. Why Do I Love These People? by Po Bronson

Tell me the story so I may know and by so knowing I may care enough to do what you need me to do.

Announcement: Lightning Rod Communications Adds "Lawyer Development" To Services.

Thank you to friends, clients and colleagues who have reminded us here at WyzgaOnWords and Lightning Rod Communications that the #1 fear we "homo narrans" (humans wired to tell stories) have in common is not fear of ssssssssnakes                        

    (although that is #2).

What unites us is fear of public speaking. Daniel Denoon reports:

"If speaking in public scares you, you aren't alone, says Paul L. Witt, PhD, assistant professor of communication studies at Texas Christian University, Fort Worth.

"It is even scarier than rattlesnakes," Witt tells WebMD. "The idea of making a presentation in public is the No. 1 fear reported by people in the U.S."

And it's not just making a speech. Anxiety strikes any time we present our ideas in front of other people.

"Anytime people make verbal remarks that need to be clear and persuasive, we find widespread reports of stage fright and nervousness," Witt says."    

To meet a very real need, Lightning Rod Communications ("Translating Images Into Action") and WyzgaOnWords ("Telling stories to understand, relate and persuade") added "Lawyer Development" to our list of professional services.

What can you expect?  Experienced, professional and individualized training and coaching to produce:

• Narrative skills designed to enhance what you do well;
• Clear, concise and cogent writing;
• Presentations delivered with power, passion and precision;
• Deliberate word choices to be heard, recalled and acted upon; and
• Platform skills (also called theater skills or delivery skills).

All the world's a stage! 

It's time you took your (confident) place on it. 

James Joyce, Dublin, & The Emotional Meaning Of The Story You Are Telling.

 

James Joyce, the Irish novelist and poet wrote these words, “For myself, I always write about Dublin, because if I can get to the heart of Dublin I can get to the heart of all the cities of the world. In the particular is contained the universal.” 

For years I have taught what I understand Joyce meant with this line.  What I believe Joyce meant was that when he wrote about Dublin he did it in such a way that every reader could experience his own city in the descriptions and images of Dublin.   The images were universal.  And because they were universal, they were emotionally meaningful to the reader.

Your listeners are the same.  They are looking to hear what is universal to their experience in the particular one of your client.     

For example, a common civil litigation theme is death of a loved one.  A focus group research participant or even potential jury member may not have experienced the death of a loved one - but every single one of us has experienced loss.  This universal experience of loss helps the listener find emotional meaning in the particular experience of the client’s story because they can relate to a time of tears. 

For the listener, now the story makes sense.  Now they can act on your behalf.  You have translated an intangible concept into workable images that are compelling for the simple reason that they are emotionally meaningful.

 TIP:    Forget winning on a stack of facts.  It's like cuddling up to a cash register: it rings but it has no warmth.

TIP:    Couple your best facts with the context within which those facts took place, and add the key personal or social value or values that fortify this narrative.  For example: rapacious home mortgage loan lender (facts) + securing profits over people (context) + greed, taking advantage and social disregard (values) -> story.

TIP:    Take THIS story to the focus group research participants and listen:  “This is about....”  “All that happened here is....”   "I’ve seen/heard about this kind of thing before...."  "It’s just like my mother/father/granny always used to say....”  Absorb what is emotionally meaningful to them.

TIP:    Take away what is persuasive (or not) about your legal story.

TIP:    Rewrite the story in your best "clear, concise and cogent manner" as I have always said and will continue to say.  It's right there on my office telephone answering message.