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.
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.
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