Wyzga On Words

How Do You Move A Mind? Tell An Emotionally Meaningful Story.

 

I never excelled at math but I understood enough about formulas to create this one decades ago:

"content + context + value = emotionally meaningful story"

What does it mean?  Lawyers are storytellers. Your client's legal story depends on power, passion and precision to develop and deliver a persuasive argument. Otherwise, the story is equivalent to "water, fire, marshmallows, silicone - now draw your conclusions."

Our justice system turns on legal elements.  But those legal elements came about because somebody did something to somebody else under a set of circumstances.  Facts are necessary to prove the case; but it is the personal, emotional and conflicting aspects of the case that create compelling stories from the same forensic fact pattern.

Whether you are writing a brief, preparing for alternative dispute resolution or presenting your case to a jury, there is no substitute, no silver bullet, no simple technique that substitutes for hard work, creativity and this formula: content + context + human value = emotionally meaningful story.

The same holds true for anyone who uses narrative to relate, motivate, innovate, incite, appeal, agitate, and so on.

Click here to read Maggie Koerth-Baker's article, "The Mind of a Flip-Flopper," delving into the scientific research studying moral attitudes, the ways in which emotions and attitudes interact and, how to change a strongly held belief.  Excerpt.

"Moral attitudes are especially difficult to change, Haidt said, because the emotions attached to those preferences largely define who we are. “Certain beliefs are so important for a society or group that they become part of how you prove your identity,” he said. “It’s as though we circle around these ideas. It’s how we become one.”

We tend to side with people who share our identity — even when the facts disagree — and calling someone a flip-flopper is a way of calling them morally suspect, as if those who change their minds are in some way being unfaithful to their group. This is nonsense, of course. People change their minds all the time, even about very important matters. It’s just hard to do when the stakes are high. That’s why marshaling data and making rational arguments won’t work. Whether you’re changing your own mind or someone else’s, the key is emotional, persuasive storytelling."  [emphasis added.]

How come story works this way? Here's one answer: 

"Timothy Wilson is a psychology professor at the University of Virginia and the author of the book “Redirect,” about how we change our minds and behavior. Stories are more powerful than data, Wilson says, because they allow individuals to identify emotionally with ideas and people they might otherwise see as “outsiders.” Wilson says researchers speculate that children who grew up seeing friendly gay people on TV will be more likely to support gay marriage as adults, regardless of other political affiliations and religious beliefs. Once you care about a character, Wilson says, you can find a way to fit them into your identity."  [emphasis added.]

TIP:    content + context + value = emotionally meaningful story.

 

Q&A Tuesday: What Else Does Story Do? Navigate Life's Complex Social Problems.

Q:     How do stories make us human?  And what does this mean for the decision-maker?

A:    Plotlines can help change the brain when "a person is curious, is predicting what will happen next and is emotionally engaged."  What David Eagleman wrote in quotes I've been saying for decades.

You might agree that the way to take anything seriously is to care about it.  Likewise, to get the listener to care about your client’s case you must endow the story with importance by treating it as an emotional experience.

Well crafted story.  How do you do that?  You take the time to produce a well-crafted story that will serve as the premium communication device to focus decision-maker attention and judgment on certain key ideas or behaviors, as well as understand the significance of that behavior.

Virtual journey.  Why is this notion critical to success?  When decision-makers follow a story, they journey - virtually - with you into a different world, an imagined reality, another mental location where the story actually exists while never having left their physical state.  The process of transition from physical world to virtual world is active with the decision-maker energetically conniving and conspiring with the attorney all the time to actually will the virtual world into existence. Why? Because the decision-maker is curious about what is going on, wants to believe the story and that they can do something which matters.

Legal to local. Does this really happen?  You have witnessed this yourself in the courtroom.  Every day decision-makers are torn away from routines, placed in unfamiliar settings and asked to make profound decisions after being handed complex legal terminology that is supposed to help them address conflicting versions of the same facts.   They hear legal judgment - the series of formal justice procedures we call case law, opinions, rules of evidence for resolving disputes in our society.

Sort and organize.  How do they decide?  By formulating a story that explains the alleged activities in familiar terms using key messages or themes that define the case from their point of view.

Parallel judgment.  Your jurors organize and sort out complex legal information, especially conflicting information, into meaningful structures that make sense to create a parallel form of social judgment that anchors legal questions in everyday understanding.

Cooperative enterprise.  In the grip of a heartfelt story artfully told, their minds are fully engaged.  When fully engaged, your jurors are working with you in a cooperative enterprise, connected and considering options, possibilities and outcomes.

Persuasion.  Storytelling persuades when the decision-maker can place herself inside the story with ease, listen deductively, absorb a story that explains the conflict early on, articulate the story in her own terms, and filter the evidence selectively to be consistent with her personal story, world experience and understanding of the world order.

David Eagleman's NYTimes Book Review of Jonathan Gottschall's work, "The Storytelling Animal," reinforces the ways in which story and the telling of stories are not mere entertainment for housebound children on a rainy afternoon.  Excerpt.

"Remember, in “Star Wars,” when Luke Skywalker precisely aims his proton torpedoes into the vent shaft of the Death Star? Of course you do. It’s memorable because it’s the climax of a grand story about good triumphing over evil. (You’d be less likely to recall a moment in which a protagonist files her nails while discussing her day.) More important, Luke’s scene provides a good analogy: It’s not easy to infect the brain of another person with an idea; it can be accomplished only by hitting the small exposed hole in the system. For the brain, that hole is story-shaped. As anyone who teaches realizes, most information bounces off with little impression and no recollection. Good professors and statesmen know the indispensable po­tency of story.

This is not a new observation, but nowadays we have a better understanding of why it’s true. Changing the brain requires the correct neurotransmitters, and those are especially in attendance when a person is curious, is predicting what will happen next and is emotionally engaged. Hence successful religious texts are not written as nonfiction arguments or bulleted lists of claims. They are stories. Stories about burning bushes, whales, sons, lovers, betrayals and rivalries.

Story not only sticks, it mesmerizes. This is why WWE wrestling thrives on fake but exciting plotlines, why there are so many hours poured into prefight boxing hype, and why there are stirring back stories included in all the profiles of Olympic athletes. But not all stories are created equal. Gottschall points out that for a story to work, it has to possess a particular morality. To capture and influence, it can’t be plagued with moral repugnance — involving, say, a sexual love story between a mother and her son, or a good guy who becomes crippled and a bad guy who profits handsomely. If the narrative doesn’t contain the suitable kind of virtue, brains don’t absorb it. The story torpedo misses the exposed brain vent. (There are exceptions, Gottschall allows, but they only prove the rule.)

This leads to the suggestion that story’s role is “intensely moralistic.” Stories serve the biological function of encouraging pro-social behavior. Across cultures, stories instruct a version of the following: If we are honest and play by the social rules, we reap the rewards of the protagonist; if we break the rules, we earn the punishment accorded to the bad guy. The theory is that this urge to produce and consume moralistic stories is hard-wired into us, and this helps bind society together. It’s a group-level adaptation. As such, stories are as important as genes. They’re not time wasters; they’re evolutionary innovations."

TIP:    Use stories to help your decision-makers navigate lilfe's complex social problems.  "As such, stories are as important as genes. They’re not time wasters; they’re evolutionary innovations."

Q&A Tuesday: How Does Storytelling Help Me As Well As My Client?

Q:    How does storytelling help me as well as my client?

A:    Stories are the stuff of daily life.  When we commit to becoming part and parcel of the story we need to tell on behalf of another, the commitment expands our awareness of our humanity.  From this place we become increasingly empathetic, compassionate, and relatable to other human beings, more authentic, believable and better at persuading, too.

Some years back I wrote an article with San Diego attorney Jim Parziale entitled, "Once Upon A Client - The Power of Persuasive Legal Storytelling."  [Click on the title to access the pdf.]  It's a treasure trove of information, thoughts and ideas gained over decades of my storytelling work which became translated into the litigation arena.  I bet you will recognize in these words much of what I have been speaking, teaching and writing about for almost 15 years.

I trust that this work will be of help to you and your clients.  If you intend to use it, please remember the integrity of attribution.

Q&A Tuesday: Why Invest In Focus Group Research?

Q:   Why should I invest in focus group research?

A:    Reconnaissance.

I am often asked what is the worth of investing in focus group research.  The answers are as many and as varied as the lawsuit you have filed or are considering filing:

1. learn attitudes
2. learn opinions
3. learn biases
4. learn notions
5. get ideas for discovery
6. get ideas for strategy
7. test the legal story
8. test the experts
9. test the experts' opinions
10. test the other side's story(ies)
11. test the visuals, demonstratives
12. test your own platform skills
13. ferret out the landmines
14. learn all the ways you can (or might) lose your case
15. learn whether you should even file a lawsuit
16. value of the case
17. whether alternative dispute resolution is feasible
18. ideas for direct and cross examination
19. witness preparation
20. whether and how to go to battle
21. and so on.

Still, lawyers are not convinced that they should invest a reasonable amount of money to learn what is bad and worse about their cases, their clients, and their own strategy.

So I am forced to go to a movie to plead my case.  The other night I was watching Steven Spielberg's Academy Award nominated production, "War Horse" based on the novel of the same name.

Early on in the movie, British cavalry officers listen to a report from their scouts about the location of enemy German soldiers.  The Brits learn the number of German troops, number of mounts, artillary, best positions of attack, strategy for attack, risks of loss of men, and so on. 

As the Brits prepare to attack the German soldiers, the officer in charge tells the scout, "Time spent on reconnaissance is time well spent."   

And then they went to battle. 

Murphy's Laws Of Songwriting Can Apply To Lawyers.

Clearly at the top of the Hit Parade of Programs at the recent American Society of Trial Consultants' Annual Conference in New Orleans was the presentation delivered by trial lawyer and songwriter, E. Thomas McCarthy: What Lawyers Can Learn From Songwriters.

Among many points McCarthy made in his jam-packed 60 minute program, this one remains with me: if a songwriter can tell a story from start to finish - with a repeating chorus or refrain - in three minutes, how can a trial attorney do the same with her case story?  Perhaps three minutes is a bit truncated for an opening statement, but the appeal of brevity is a practical and formidable tip lawyers can use to ratchet down their case story to its clear, concise and cogently memorable points.

TIP:    One storytelling exercise I use with my clients is to practice telling their case as a 45-30-15 second story.  Believe it or not, you can tell your story in seconds.  The exercise proves when you know the true case story well.

TIP:    McCarthy suggested we pick up a copy of Murphy’s Laws of Songwriting by Ralph Murphy.  "In easy to grasp terms, Ralph talks about helping arm the songwriter for success by demystifying the process and opening the door to serious professional songwriting." You can listen to the entire Nashville Public Televisions program with Murphy as the featured guest by clicking here: http://wnpt.org/productions/wow/podcast/4006_RalphMurphy.mp3

TIP:     Click here to read Murphy's Law of Songwriting to learn from the master how to take the music of your spoken word from drab to dynamite.  If you can do that, then as McCarthy would say, "You hooked it!" 

 

 

 

Q&A Tuesday: A Technique For The Client To Create Their Own Confidence.

Q:    How do you give a client confidence before testifying?

A:     You don't.  A client must create it for herself.

As a litigation and communications consultant I am often involved in helping prepare people to testify.  I find that the process is like being part of an archaeological dig with the client to discover that particular truth or icon she will adopt for herself to become grounded in confident, authentic testimony.

I always ask the client +to recall childhood stories with a good character and an evil one. There is a certainty - an "Ah Ha! moment - when the client uncovers the precise character and steps into the persona of the good or heroic one.

Next I ask the client to draw a picture of that heroic character for their eyes only.  I don't want to see it. I am satisfied knowing that the client has aligned herself with a character she chose to create the confidence she needs to testify with clear, concise and cogent authenticity.

TIP:     As my friend Ed says, "When we ask for courage we are given opportunities to be brave."  Our job is to help the client discover those opportunities which she will use to create her own confidence.

Narrative Medicine And The Cross-Over To Law School And Law Practice.

What do internists, especially ones practicing narrative medicine, have to tell law students and lawyers? Quite a lot.  And all it will take is 39 minutes of your time.

Rita Charon, MD, PhD. a nationally renown physician, writer and educator as well as Executive Director/Founder, Program in Narrative Medicine College of Physicians and Surgeons, Columbia University is at the top of the game of Narrative Medicine.

Click here to attend the Department of Medicine Division of Medical Humanities presentation "Narrative Medicine: Accuracy, Evidence, Allegiance, Joy" as Dr. Charon discusses the importance of the medical narrative as a tool for physicians to better understand their patients and themselves, and it's role in training a new generation of doctors.

What is so fascinating to this former pediatric nurse, life-long storyteller and litigation consultant is the cross-over between Dr. Charon's ideas on the dividends of narrative medicine and those that can be reaped in law schools and law practices.

Highlights with my comments in [brackets]:

*    Medicine must go beyond the bounds of knowledge with differential diagnostic brains.  That kind of fact-based thinking is inadequate to the task.  [Likewise, our reliance on "the facts and only the facts" gives us a distorted view of what happened to our clients and what matters to them.]

*    Illness unfolds in stories.  The thing that is amiss in the body tells the self that there is something the matter and eventually that story comes to the attention of the healthcare provider who will turn around and tell it to a colleague.  The idea being that the telling and retelling should lead one to know what to do.  [How do you see yourself in the internist's shoes?]

*    Medical stories are a matter of ongoingness.  A doctor's duty is to develop a sense of story that takes into account devastation, loss, grief, magnitude of hurt and pain.  [Our clients are in the same boat - and we are there with them.]

*    The big question: Are you available to receive the story, to “co-hear” the narratives of illness, to train yourself to know accurately and fully what the patient expresses to be more effective in care?  [For lawyers, are we available to hold the space for the client so we develop different skills interviewing our clients, determining what the problem is and how to remedy it?]

*    You must learn to heed the story, learn from the story, learn the skills to recognize it, stand in the gathering of the story and work with the patient and family - to experience what the patient and family go through and for the patient to learn what the healthcare people experience.  [Who here has often desired that ability to co-hear with our clients and our clients families?  We are walking parallel roads with these internists.]

*    What are the dividends?  We find this practice helps improve cohesion of healthcare teams, minimize burn-out, increase empathy, encourage taking on the perspective of another person, feeling a growth in affiliation with their colleagues and others, listening attentively and less defensively, recognizing the unique dimensions of colleagues, using parts of the brain that had gone fallow, and recognizing that stories are total storms rather than the typical pattern of beginning, middle and end.  [What would you give for similar practical and human dividends in your practice?]

*    Narrative medicine helps medical students and doctors stop squandering evidence by learning to retrieve it in narrative, grasping the patent's story in words and learning to plumb the meaning of the evidence.  [For lawyers that meaning will carry over to the trier of fact.]

*    When doctors are fortified with the competencies of listening, curiosity, empathy, imagination their practice changes, they make authentic contact with the patient cleared of biases and other fsact-gathering screens.  [All anyone wants is to be heard, even for a moment.  After you have given the client the chance t tell their story you can go back and collect the data you need for the lawsuit.] 

Dr. Charon's makes this introduction to every patient: " As your doctor I face you so you can express to me what you are going through in words - please tell me what you think I should know about your situation."  She sits with her hands in her lap and absorbs what happens.  By inviting the account she can learn without shoe-horning the patient into her own fact list.  [Beginning with law school we can encourage the development of attentive listening. It wil flow over to practice.  Imagine th transformations.]

I invite you to spend 39 minutes and change your practice with practical and human dividends.
                                   
















                          

13 Minutes With Bill Harley - Storyteller - TEDx: Stories Out Loud.

Back in the day I fell in love with the storyteller Bill Harley.  But then so did many many many folks: storytellers and listeners alike.  We knew so many of his stories and song by heart.  Bill made us happy and nostalgic and giddy and wistful at the same time.

Over the decades, articles, blog posts, and presentations to thousands of lawyers, I've said the same things about the importance and power of story:

1. To make your story emotionally meaningful to the listener, you must marry content (facts) to context (circumstance).
2. We are wired to hear narrative, to sort matters out - even legal matters - in narrative.
3. Narrative is how we figure out the ways to carry on despite the problems in our lives.

TIP:    Click here to take 13 minutes to listen to Bill Harley in his recent TEDx talk on the power that stories have which no media, no social network, no list of facs (or factoids), no computer can match.

A few highlights:

TIP:    We are creatures of context.  Context gives order: what happened before and what came after.  Order gives meaning.

TIP:    Stories are how we assign meaning to our lives, and the lives of others.

TIP:    The stories we create are how we answer the riddle of the problem so we can carry it through our life without it dragging us down.

TIP:    We are not built to remember lists of facts - we are wired to recall narrative.

TIP:    Stories work because they are cognitive & emotional: safe to think about because it’s not about us: we take the story & apply it to us & take us & apply to the story.

TIP:    Know when to speed up & slow down.  Know which visual underscores the narrative.

TIP:    Rely on this: we are genetically encoded to pay attention to the person in front of us. 

AND, if the one in front of us is you, the storyteller, imagine what you can do with the power of story.

 

 

Samuarai Lawyer And The Book Of Wind.

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