Wyzga On Words

Draw To Reveal The Story.

Who here doodles?

When we draw we are using a basic visual tool to help make sense of complex concepts, thoughts or ideas.  Drawing can help clarify and articulate our visions to ourselves as well as others in a conversation, presentation, meeting or trial.

I often use Post-It flip charts and Magic Markers when working with clients or audiences.  Drawing provides insight and problem-solving in a myriad of ways that mere conversation or brainstorming simply cannot accomplish as effectively.

Perhaps it's true that seeing is believing.

To see for yourself, visit Legal Sketchpad:

"BUSINESS SKETCHING FOR LEGAL CONFERENCES, STRATEGIC PLANNING MEETINGS AND TRAINING.

Legal Sketchpad promotes the use of basic visual tools in legal communication. As direct as possible, as low tech as possible."

I have no dog in this fight.  I am just pleased to help spread the word that PowerPoint is not the only game in town. 

TIP:    Fall back on what came naturally to you when a box of Crayola 64 helped unleash your imagination and creativity.

Lawyers are Suspicious of Stories That Do Not Come Packaged in Structures.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Click here for the 3rd post.

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 2.

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.

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

Part 2.

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.

As for “purpose” – it is not correct to say that the only reason to draw the sword is to cut down the enemy.  Sometimes, it is done in order to see the “enemy’s” reaction and show a willingness to cut, so as to help with settlement.  That is why setting mediation for a date just before one would start ramping up for trial is often much better than having mediation when no trial has been set.  He says not to be conscious of the technique you will use.  This is accurate in swordwork or any combat art.  However, in law, one must be extremely conscious of the arguments and other techniques to be used.  At the same time, though, one must avoid locking into a particular argument so as to blind oneself to developments in the case. 

One of the very first Iaido moves one learns is to draw the sword in a horizontal motion in front of the other person’s eyes.  The main intention is not to cut, but to cause the other person to blink,  hesitate, or move in a particular way, thus setting the stage for the next move.  Japanese castles are often designed so that one entrance/exit appears strong and important, so as to attract an attack, while a less obvious portal somewhere else allows troops to come forth and flank the attackers.  The parallel in law is that sometimes, one makes an argument without there being a true intention for that argument to carry the day.  It may be meant to create an environment where another argument  or negotiation strategy will succeed.

Here’s an old Japanese story.  One fellow bragged about the sharpness of his sword.  He threw up a silk scarf into the air and as it fell, it cut itself in two.  Another fellow put his sword into a stream and the leaves cut themselves as they passed over the sword.  The third fellow (why is it always the third guy in these stories?) put his sword into the same stream and the leaves went around, unharmed.  My preference is to develop the skills and stand like the sword in the water, so that conflict itself falls away rather than destroying anything.   That is the teaching we get from Aikido.

If you haven’t tried Aikido, you may want to walk into a dojo and see if it holds anything for you.

Part 3 will conclude on Monday.

 

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.

It Was My Own Damn Fault.

 

Thank you to Brushy Mountain Bee Farm for the Master Beekeeper Suit image.

Some of the best stories begin with, "It was my own damn fault."

For a beekeeper ("beek" for short) this time of year can be wildly uncertain.  One day it's 85 degrees and sunny - then overnight cold winds come down from Canada dumping snow in the mountains and rain on the lower levels.  The hives have been quiet over the winter months but now they are beginning to ramp up along with the blossoms.  Swarms will begin soon as the stronger colonies outgrow their homes and look for roomier digs.  We wait and watch.

My plan was just to tend the bee-yard: weed around the hives and add oil to the paint cans that hold the frame stand legs to keep out the ants.  It was too cool to get into the hives. At about mid-40's Fahrenheit the scout bees go out looking for nourishment.  At about the mid-50's range more foragers go out.  And by the time the mid to high 60's hit the foragers can be in full flight swing. 

But beeks ideally need a day that's in the sunny 70s with no breeze so the colony does not get chilled when you go inside the hive box.  Even when you get good weather, take care.  If the previous days have been cool and cloudy (as ours were), the bees can be as cranky as toddlers penned up without TIVO.

There's a small gap where my beesuit zippers to the veil.  Just enough for a honeybee body to get through if she's looking.  Then she and I are trapped in there together.  With more of the colony swarming around it's a good idea to just walk away until they lose interest in me - but there is still the matter of getting to the honeybee (or bees) who are inside.  And taking off the veil is not an option.  Having learned my lesson the hard way I slap a small piece of duct tape over the hole when I plan to work the hives. 

This is where I get to: "It was my own damn fault." This day I broke all my own rules:  I left off the piece of duct tape to cover the gap.  I made a spur-of-the-moment decision to quickly work one hive.  I did not fire up my smoker ahead of time.  I don't like using one but it's a nice idea to have it lit and ready in case you want to calm cranky bees.  The weather was not the best.  The bees were cranky.  And they let me know it.

I can't blame them that a few facial stings later I look like a Shar-pei with mumps.  It was my own damn fault.

TIPS: The price of experience: Be prepared.

If you are going to court, be prepared.

If you are going to the hospital, be prepared.

 If you are making a meal, be prepared.

And when you screw up because you were not prepared, the responsible thing to do is admit it, make apologies or mea culpas (if needed) and move on.  Life is short and sweet as honey. 

Listen To The Decision-Maker. Don't Just Look At Them.

                        

A few weeks back I was in a courtroom helping the trial team select a panel of jurors to hear a three week trial.

We had a weekend to sort through the venire panel's answers to a 65-question supplemental juror questionnaire (SJQ).  We made preliminary decisions based on the written responses.  We thought we knew something of the members of the venire panel.  Armed with their responses we planned our follow up in court.

One woman in particular was intriguing.  Her responses read well on the SJQ.  She answered appropriately.  She appeared favorable to our side.  But there was something about her expression that was unsettling. 

This woman smiled constantly.  She smiled in the jury box. She smiled when she was excused from the courtroom.  She smiled when she talked with fellow panelists.  She smiled when she responded to the attorneys' questions. 

It was too much smiling; it was misleading, disingenuous smiling. And it was a clue.

Despite having previously agreed to let the distraught and grieving parents attend key portions of the trial, this woman later demanded a hearing with the judge to tell him in no uncertain terms that she resented (yes, resented!) having to sit through day after day of an emotionally difficult trial when the same demand was not made on the grieving parents of the dead child. 

What does one thing have to do with another?

In a recent study reported in Scientific American, How Emotions Jump From Face to Face, researchers found that:

"Across two studies, lead author Rebecca Neel and her colleagues found that male faces were more likely to grab anger from the face next to them, and female faces were more likely to grab happiness. Interestingly, this was not just a matter of people seeing male faces as more angry and female faces as more happy (an effect shown in several previous studies): the errors were most common when the emotion came from the adjacent face.

While this grabbing seems like an automatic process of visual perception, it can be influenced by biases we hold about the social world. Expectations shape perceptions (and misperceptions).  Since we tend to assume men are more aggressive and women are more nurturing, we’re more likely to see men as angry and women as happy. Snap judgments happen easily as we scan our environments looking for social cues. It may seem a serious design flaw in a diverse modern society, but our brains have evolved to make constant and routine approach-avoid assessments called ‘affordance management’ decisions. At the creature level, we’re trying to minimize risk and maximize opportunity. It’s more costly to miss cues of impending danger than it is to mistakenly assume that someone is threatening, so we err on the side of caution. Men have historically posed a greater physical threat than women, so the angry face is suddenly male. Females are seen as posing little threat and ample opportunity for connection, so our brains maximize opportunity by assuming a woman is friendly and eager to interact (or take care of us) even when she isn’t."  [Emphasis added.]

This potential juror had it written all over her: I can pose a threat.

TIP:    

Do not mistakenly assume that the friendlies are the ones with the smiling faces. 

Do not mistakenly assume that the enemies are the ones with the angry faces.

Listen to voir dire with the whole body, and pay attention to what you know about people.

Q&A Tuesday: Even Deep In Litigation, Something Somewhere Is Wonderful To Behold.

Q:    How do I maintain level-headed sanity and courage in litigation?

A:    Keep one eye on your advocacy and the other on the good of what you do in the world.

Litigation is a rough-and-tumble way to make a living.  It's easy to get caught up in aggression over assertiveness, combat over conflict, and stealth over strategy.

The litigators who keep it all together have found a way to be human beings who serve as trial attorneys. 

TIP:    Knee-deep in trial it helps to remember that you are working to make ours a better world by telling the story for those who cannot in such a way that the decision-makers see, hear, comprehend and act for verdict success.  

Our Fate - Like Fruit Trees In Winter.

Standing all raggedy, twiggy and forlorn in my backyard is a peach tree. Its naked form reminds me of a piece by German poet and novelist Johann Wolfgang von Goethe:

"Sometimes our fate resembles a fruit tree in winter.  Looking at its sad appearance who would think that those stiff branches, those jagged twigs would turn green again and blossom and bear fruit next spring; but we hope they will, we know they will."

I believe that one of the most difficult and courageous things we can do for ourselves, our families, friends and clients who look to us for a little encouragement is to acknowledge a time of fearful barrenness, that hum of panicky anxiety.  And only then turn coax an expectant face toward spring.

This photograph reminding me that the honeybees are soon on the local blooms was taken by friend and fellow beewrangler, Janet Andrews of Backyard Bees who creates some of the most remarkable honey creams and lip balms you will find anywhere.  Even my pure honey and beeswax cappings find their way into her luscious product.  Family in the chill mountains of Colorado and the dry indoors of New Hampshire swear by its restorative properties.

Every one of us every day needs a little something good.

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?