Wyzga On Words

"Capital Punishment Is Little More Than Revenge."

Mikhail Khodorkovsky writing for the Sunday NYTimes, "Notes From a Russion Penal Colony," relates a story about how one prisoner "refused to cut a deal with his conscience" and thereby helped Khodorkovsky, himself a prisoner in Penal Colony No. 7, Segezha, Russia.

Why is this story important to me?  Because of something a mother told me yesterday.  Apparently, her son is caught between dating two women - but only one does he really care for.  The mother told the son that it was not fair to the other girl and he should break it off if there was no future.  The father told the son, "Everyone dates around with multiple partners - no reason you should be different." 

To whom does the son listen?  That's not for me to say.  I can tell that there might be an answer in Khodorkovsky's essay:

"To cut a deal with one’s conscience — to lie, keep quiet, “not notice,” hiding behind the claim that it’s “for my family.” To convince oneself that “such are the times,” or that “everyone does it.” Who are we really dealing with? How do we find out that the other party — the conscience — refuses to deal? When we find ourselves face to face with disaster? Or later, when we are tallying up our life and become painfully aware that there’s no more dodging the raindrops, that there remain only memories? But by then you can’t change anything."

Along a similar theme - one's conscience - is a movie I watched the other night, Pierrepoint, The Last Hang Man. 

The movie is disturbing in subject matter but made all the more so by the plodding, methodical unfolding of the story.  It mimicks the methodical technique of the executioner.  After watching a few executions the viewer could become almost inured to death by hanging.  I still blinked when the rope snapped.  What saves the story is the hangman's role: he believes what he does is sacred work.  To him, the criminals have "paid the price" with death - the slate is wiped clean.  And he has a hand in that.  This is the power of the story whether or not you agree with his posture, or believe he is hiding behind an artfully crafted excuse to murder.

Who was Albert Pierrpoint?  He was a grocery delivery man whose father was an executioner for England.  Pierrepoint feels a calling to not only follow in his father's footsteps but to become the most efficient executioner England has witnessed.  He realizes that aim only to be reversed in his convictions about the benefits of capital punishment by one of his last hangings.  After 608 executions in 20 years, Pierrepoint writes, "Capital punishment is little more than revenge."

"'If death were a deterrent,' he wrote, 'I might be expected to know. It is I who have faced them at the last, young lads and girls, working men, grandmothers. I have been amazed to see the courage with which they take that walk into the unknown.

'It did not deter them then, and it had not deterred them when they committed what they were convicted for. All the men and women whom I have faced at that final moment convince me that in what I have done I have not prevented a single murder.'"

Advice To Navy Seals In Training - And For The Rest Of Us.

U.S. Navy SEALs (Sea, Air and Land Team) take on the tasks of war focusing on forward operations and combat support.

What I want to know is: How do they endure the grueling mental and physical workouts that weed one brother from another?  Click here to see some photos of U.S. Navy SEALs in training.

Here's a clue: some advice from Joe Maguire (Deputy Commander U.S. Special Operations in Pacific Command-COMPAC) sent to me on April 24th, 2011 when I was ready to call it quits:

"First, never give in to the pressure of the moment.  Whenever you're hurting just hang in there.  Finish the day.  If you're still feeling bad, think about it long and hard before you quit.

Second, take it one day at a time.  One evolution at a time.  Don't let your thoughts run away with you.  Don't start planning to bail out because you're worried about the future and how much you can take.  Don't look ahead to the pain.  Just get through the task and know success is ahead." 

Yes, I'm a U.S. Navy Nurse; but I'm no SEAL.  I'm no SEAL; but I'm still standing.  Taking it one evolution at a time, I fall down 7 and get up 8.

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?

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.

 

Q&A: Pack Up Your (Trial) Troubles In Your Old Kit Bag.

Q:    What's a kit bag? And what do I pack in it for trial?

A:    A kit bag is a knapsack or rucksack.  A vintage song from WWI, Pack Up Your Troubles In YOur Old Kit Bag, advised the boys going to war to pack up their troubles in their kit bag rather than worry.  I vaguely remember the song being played on a radio show called "Rambling With Gambling."  But I digress.

A few weeks ago the trial team got ready to show up in the courtroom for jury selection.  We assembled boxes and crates and redwells full of trial materials.  Following are a number of items we also packed that made our lives go a heck of a lot more smoothly:

1. Post-It pads in various sizes and colors.
2. Legal pads large and small.
3. Packages of ink pens in blue, black and red.
4. Packages of magic markers and highlighters.
5. #2 pencils with sturdy erasers.
6. A pad of butcher block paper for the easel.
7. A box of bottled water.
8. A supply of Airborne, throat lozenges, aspirin, and Kleenex. 
9. Packages of AA batteries.
10. A metal retractable/telescoping pointer.
11. A supply of single dollar bills and quarters for Xerox machines, parking meters, and vending machines.
12. Extension cords and multi-cord power strips.
13. Computer cables and appropriate connectors.
14. Gaffer tape (to secure the extension cords to the floor).
15. Extra light bulbs for the projector and Elmo.
16. Fruit, nuts and chocolate for the afternoon pick-me-up.
17. A collapsing yardstick and retractable metal measuring tape.
18. A thumb drive or three (they're small).
19. Someone who knows how to run all the techno-gizmos at the time you need them to run.
20. A full tank of gas to get to and from the courthouse timely.
21. Good will and courage.

What do you pack up in your trial kit bag?  How has it saved the day?

Iraq Vet With PTSD Finds Solace In A Film Role.

Walter Reed National Military Medical Center in Bethesda, Maryland, has seen its share of wounded military men and women.  Many have war-inflicted wounds you can see.  Many others have something not so easily detected: post-traumatic stress disorder. 

Sgt. Matthew Pennington is one such survivor.  James Dao brings his story to clear relief in his reporting for the NYTimes, "Acting Out War's Inner Wounds."

When I read the article I was reminded of the line by pre-eminent writer Zora Neale Hurston that I have embedded in my email signature line and on which I have written: "There is no greater burden than carrying an untold story."  I believe that what Hurston meant is when we share our stories we find we are very much alike.  I don't know whether the sharing or the reflection of our experience in that of another human being is where the burden lightens; but I can tell you that it does.

“We are lonesome animals.  We spend all of our life trying to be less lonesome.  One of our ancient methods is to tell a story begging the Listener to say - and to feel - ‘Yes! that is the way it is, or at least that is the way I feel it.  You are not as alone as you thought.’” [John Steinbeck]

 The story continues:

"For Mr. Pennington, medications seemed to worsen his depression and therapy did not ease his anxiety. He seemed headed for divorce, isolation and perhaps alcoholism. And there his story might have ended, a case study on the intransigence of war’s psychological scars. But it did not end there.

In 2009, an unexpected opportunity landed in his e-mail inbox: a casting call, forwarded by a friend in Nashville, from an undergraduate filmmaker looking for someone to play a combat veteran who had lost a leg, had post-traumatic stress disorder and lived in Maine.

This is my life, Mr. Pennington thought.

So on a lark, Mr. Pennington — whose last appearance on stage was in middle school and who had become nervous in crowds and, indeed, avoided most human contact — decided that fixing his life depended on performing before a camera.

“I thought acting would be so out of the normal that it would force me to deal with things,” he recalled. “I wanted my life back.”

The struggle by wounded veterans like Mr. Pennington to reclaim their lives is the unfolding next chapter in America’s wars in Iraq and Afghanistan. Since 2001, 46,000 American service members have been injured in combat, perhaps a third or more seriously. Those veterans now face years of rehabilitation at a cost of billions of dollars annually.

In the coming weeks, The New York Times will profile a few of those veterans. Their cases say much about the critical importance of high-quality health care and loving families. But as with Mr. Pennington, they also underscore the individuality of recovery, where the most effective therapies are often discovered by the veterans themselves."

I am not writing a happy ending.  That's not for me to write.  If one is written it will be Pennington's doing.  What strikes me is that yet again the story of who we are, where we've come from, what we've seen, how we have persevered will help all of us get home.

You might wish to click here to watch the story in video form.

When Johnny Comes Marching Home - Then What?

I can't get this image out of my head:  the men and women serving in the Armed Forces are coming home from Iraq.

Hurrah!  We can sing "When Johnny Comes Marchin' Home."

But there is nothing for them to do.  Now what?

As reported by Shaila Dewan in the NYTimes, "For the Youngest Veterans, the Bleakest of Job Prospects," the heartbreaking truth is that many many returning veterans could be without purpose and gainful employment.   Excerpt.

"Veterans’ joblessness is concentrated among the young and those still serving in the National Guard or Reserve. The unemployment rate for veterans aged 20 to 24 has averaged 30 percent this year, more than double that of others the same age, though the rate for older veterans closely matches that of civilians. Reservists like Corporal Rhoden have a bleak outlook as well.

In July 2010, their unemployment rate was 21 percent, compared with 12 percent for other vets."

We ask our young men and women to serve their country and then the country cannot serve them with a job.

Yes, I am old enough to remember John F. Kennedy exhorting Americans, "Ask not what your country can do for you; ask what you can do for your country." 

These veterans have done exactly that: done what they could for their country.  Now what do we do for them?

How is it possible that over the decades this good country of ours has fallen down 7 and gotten up 8 - but today seems flat on its back?

When I taught English as a second language, the motto was, "Each one teach one."

Surely, there is one employer who can employ one vet.  When multiple employers each employ one vet then you have an army in the work force.