Samuarai Lawyer In Three Parts. Part 3.

Patrick Trudell writing as Zen Lawyer Seattle ([email protected]) 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 3.

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

As for “demeanor and attitude” – this is not too far off  in terms of remaining flexible.  However, the idea of trying to “destroy” the other side seems off, for reasons discussed previously.

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

As for “make yourself bigger” – I tend to agree with him in the sense of not being intimidated, but it is very important not to “go into battle” where the other side can overwhelm you.  For example, an individual with modest resources cannot expect to go toe to toe with someone like Shell Oil unless legal counsel is taking a huge amount of the risk and expense. This gets back to Sun Tzu and the Art of War and the various types of situations where one goes in but cannot hope to emerge victorious. 

There are many lessons to be learned from Musashi, such as about resolve and honing one’s skills so that they can be called upon at any time and without delay.  However, it is not appropriate to substitute “lawyer” for “warrior.”  I find Sun Tsu’s Art of War to be much better for lawyers, since it concentrates on strategy -- evaluating what makes sense to do and what could be disastrous – as opposed to readying a person to strike with a sword.

Here's an example of Aikido in litigation.  My client, the defendant, was sued for trespass in that his company cut trees on a neighbouring property while doing development work.  They stopped as soon as they realized the GPS was off.  The other side was a very aggressive lawyer.  We obtained an expert report about what was needed to remediate the property, but  did not disclose that report to the other side.  At mediation, my client started with an apology.  Then, we ignored the dollar demands from the other side.  Rather, we focused on the steps that my (still undisclosed) expert report said should be taken to make the property whole again.  The other side agreed with those steps.  Then, I asked whether he would agree to my client taking those steps, since his forces were still on site and able to do the work required.  Again, there was agreement, provided the final product was subject to an inspection and approval.  At the end of the mediation, my client was to undertake the work, which would be paid for by his insurer, at a fraction of the cost of hiring outside forces.  Also, the work would be done much more quickly.  The insurer (my client, too) won by paying less than we otherwise would have.  The client/defendant won by getting paid to fix up his own error.  The plaintiff won by getting the property remediated quickly and effectively.  We never did reveal the report and never went toe-to- toe on dollar figures or denying responsibility.  We effectively sidestepped the points of conflict.

This kind of thing is not possible in all cases, but by looking for the possibility of such a resolution, we keep our minds open in ways that would not occur if we take an overly "conflict laden" approach.

Click here to access a copy of an article by Richard C.C. Peck, Q.C. entitled "The Commandments of Advocacy" recently posted in the The Advocate, the Law Society of British Columbia's monthly publication.  It is wonderfully written and an excellent example of how litigators should behave.  This article also goes to how the samurai approach is not really something to carry over into the practice of law.

Comments

[Patrick Trudell]

Hi Diane,
I just saw your three posts discussing my first three Musashi posts. I enjoy the discussion. Eric Wagner offers sound insight. There is a fourth Musashi post on his fourth book coming soon. As an aside I plan on adding to the Musashi series with discussion of Sun Tzu's The Art of War.

I believe in today's legal climate with insurance companies often stiff arming legitimately injured plaintiffs it is important for a plaintiff lawyer to file the client's case and proceed to trial. This reality and Jerry Spence's metaphor of the trial lawyer as a warrior led to the Musashi series.

As Musashi says the opposition will recognize an opponent who is a warrior. They will prefer to fight someone else. This is how effective settlements happen, and if not the lawyer is ready to try the case.
Regards,
Pat

[Diane Wyzga]

Hello, Pat.

Thank you for providing such a provocative subject. Eric is sure to see your reply & others as they come in. What I most appreciate is the diversity of viewpoints and approaches.

And we both look forward to Book 4.

Have you had a chance to read the timely article from The Advocate? What are your thoughts?

Every good wish ~ Diane

[Eric Wagner]

Pat and all -- One of the most important things one can do is to provide questions for discussion. You have done that with your posts.

One interesting aspect is that I am in Canada while you are in the US. The climates are almost certainly quite different. How would you describe the feeling of litigation in the US?

I agree with you that in many cases, it is a virtual necessity to file a claim and either hang it over the other side's head at mediation or admit that negotiation is useless and just head to trial. I take this approach in family law (if the other side is getting entrenched) as well as in general litigation. If nothing else, doing this will help you avoid missing limitation periods!

From a martial arts standpoint, it's similar to drawing the sword and keeping the point at the other person's face while moving around. As an aside, I used this technique with a plastic pipe to deal with cattle on a ranch where I used to work. Very effective and got me an offer to work in a rodeo.

When thinking about the sword pointed at the other party's face, I like to consider it as a reminder to keep all my evidence and argument focussed on the central elements of the matter.

Please take a look at some of the approaches used in Aikido and let me know how you think they apply in the legal profession.

I look forward to an ongoing discussion. Gotta go see clients.
Otsukare sama