Wyzga On Words

Who Will Speak For The (Illegal) Children?

  Imagine that you are 6 years old, do not speak English, are wearing clothes a few sizes too big for you and a sign around your neck that reads "Juan" which is your first name, and you are in a court of law alone - except for the social worker who cannot represent you.

    What is your crime?  You and your parents risked the uncertain dangers of a trip from your home to the United States to escape the certain dangers of the gangs, drug traffickers and other criminals that terrified that life.  You are illegal.  Now you have to answer for that decision.

    Julia Preston writing for the NYTimes, "More Young Illegal Immigrants Face Deportation," pulls back the curtain on a side of life many of us know nothing about: deportation of children without legal representation.  Excerpt.

"Immigration courts in this South Texas border town and across the country are confronting an unexpected surge of children, some of them barely school age, who traveled here without parents and were caught as they tried to cross illegally into the United States.

The young people, mostly from Mexico and Central America, ride to the border on the roofs of freight trains or the backs of buses. They cross the Rio Grande on inner tubes, or hike for days through extremes of heat and chill in Arizona deserts. The smallest children, like Juan, are most often brought by smugglers.

The youths pose troubling difficulties for American immigration courts. Unlike in criminal or family courts, in immigration court there is no right to a lawyer paid by the government for people who cannot afford one. And immigration law contains few protections specifically for minors. So even a child as young as Juan has to go before an immigration judge — confronting a prosecutor and trying to fight deportation — without the help of a lawyer, if one is not privately provided.

So far this year, more than 11,000 unaccompanied minors have been placed in deportation proceedings, nearly double last year’s numbers.

Young migrants say they are fleeing sharply escalating criminal violence in their home countries. Federal agencies have scrambled to muster adequate detention facilities, while legal groups try to find lawyers to represent them. Judges, for their part, have struggled to offer fair hearings to penniless youths who speak little English and often do not even understand why they are in court.

The influx has heightened concerns that young people without legal help may not be able to obtain even the most basic justice.

“It is almost impossible for children to receive relief in immigration court on their own,” said Meredith Linsky, the director of the South Texas Pro Bono Asylum Representation Project, known as ProBAR, a nonprofit organization that defends young migrants in the region. “The reality is they cannot comprehend the system and what is being asked of them.”"

    Say what you will about immigration.  These are children.  What kind of justice is this? 

    Law firms seeking opportunities for pro bono efforts may well look to these cases.  The American Society of Trial Consultants Pro Bono Committee would be a good place to get some assistance. 

    For those asking what's the use of one case among so many, here's one story with one happy ending: a chance to work, to contribute, to serve.  Who are we to say "no" to such determination.?  Excerpt.

"Sometimes, a Victory

When children appear in court without lawyers, it can be distressing for them and for judges. One judge tried to put a boy at ease by asking playfully to share a bit of the child’s lunch. Thinking that he was supposed to have brought food for the judge, the boy burst into tears.

Migrants who have gotten help from lawyers have won immigration cases they could never have attempted alone. Eduín Rodríguez, now 18, was abandoned by both parents in Honduras. He rode the tops of freight trains across Mexico and swam the Rio Grande to Hidalgo, Tex.

Caught and sent to a shelter, Eduín made contact with ProBAR lawyers, who realized he was a strong candidate for a special immigration status for abused or neglected juveniles.

The legal battle wound from immigration court to Texas family court and back to immigration court. By the end, not only Eduín had won a permanent resident’s green card. The lawyers also discovered that his sister, Cintia, who is one year older, had made the same journey before him and was living illegally in Texas. Through Eduín’s case, she also became a legal resident.

The siblings support themselves on their own in Harlingen. They share a small apartment, and Eduín has been working full time, helping his sister while she went to school. Cintia graduated from high school in May with honors and also completed a nurse aide program at a local community college.

“I left Honduras because I didn’t want to be a loser,” said Cintia, who is now working part time at a supermarket while she continues her nursing training. She plans to enlist in the Navy.

“It really was worth it,” Cintia said, “all the pain I went through, the hunger on the trip, the thirst. I’m a successful person now because I graduated and I’m going to college.”

Flashing a smile, she displayed her most vital documents: her Texas nurse aide certificate and her green card.

“Thanks to God I’m here legally,” she said.""

Fear Or Compassion? Which Motivates Action?

I've been reluctant to kick the hornet's nest on this one.  Folks seem pretty divided on The Reptile Theory.  Like Paris - you either love it or you hate it.

The notion that we should regard jurors as reptiles to get some huge verdict out of them by playing to their fears has always struck me as cold-blooded, and not a little inhuman.  How we regard people and things becomes how we treat them.  I felt so strongly about this I co-wrote an article with Stephanie West Allen and Jeffrey Schwartz for The Jury Expert entitled "Atticus Finch Would Not Approve."  [Click AllenSchwartzWyzgaTJEMay2010 to read.]  My position has only strengthened.

I used to work with a beekeeper who insisted on calling the honeybees "really angry" when they reacted to us opening the hive boxes.  He treated them as if they were somehow "really angry."  He over-smoked them.  He was tense, jumpy and afraid.  His physical actions conveyed fear.  At the end of the day working with him I was a wreck.

And yet, there was nothing to fear.  We were suited up for the job.  We would get head-bonked by some of the guard bees; but that was normal behavior.  No bees chased us or swarmed us.  A honeybee has to be truly threatened to sting; when she does she rips out her guts and dies.  Not an action to be taken lightly. 

When I was trained as a beekeeper I was told to remember, "No jerks in the beeyard." While I have not yet gotten to the stage where I will work my hives wearing only a veil, I know that to bee Zen keeps everyone - beekeepers and honeybees - calm.

It works with people, too.  The Science of Compassion by the social scientist David DeSteno writing for the NYTimes shares the results of scientific research that shows empathy with the suffering of others is alive and well.  Excerpt:

"As a social psychologist interested in the emotions, I long wondered whether this spiritual understanding of compassion was also scientifically accurate. Empirically speaking, does the experience of compassion toward one person measurably affect our actions and attitudes toward other people? If so, are there practical steps we can take to further cultivate this feeling? Recently, my colleagues and I conducted experiments that answered yes to both questions.

In one experiment, designed with the psychologist Paul Condon and published in the Journal of Experimental Social Psychology, we recruited people to take part in a study that was ostensibly about the relation of mathematical ability to taste perception — but that in actuality was a study of how the experience of compassion affects your behavior.

In another study, published in the journal Emotion, the psychologist Piercarlo Valdesolo and I conducted an experiment ostensibly about music perception — but that actually investigated how feelings of compassion might be increased.

Our hunch was that compassion is easiest to feel when you have a sense of commonality with someone else."

And what did the scientists find?  Excerpt:

"What these results suggest is that the compassion we feel for others is not solely a function of what befalls them: if our minds draw an association between a victim and ourselves — even a relatively trivial one — the compassion we feel for his or her suffering is amplified greatly.

What does this mean for cultivating compassion in society? It means that effortful adherence to religious or philosophical dictums (often requiring meditation, prayer or moral education), though clearly valuable and capable of producing results, is not the only way to go. There is nothing special about tapping in synchrony; any such commonality will do. Increased compassion for one’s neighbor, for instance, can come from something as easy as encouraging yourself to think of him as (say) a fan of the same local restaurant instead of as a member of a different ethnicity.

Simply learning to mentally recategorize one another in terms of commonalities would generate greater empathy among all of us — and foster social harmony in a fairly effortless way."

I am not Pollyanna enough to believe that I can buy someone a Coke and the world will live in perfect harmony.  

I agree that there is fear in the world.  Look at everything from video games to the nightly news to the most recent midnight movie massacre in Aurora, CO.  You will get more than your share of a diet of human suffering. 

But fear does nothing to improve the situation - fear causes us to hide, bar the doors, become complacent.  Ironically, when we feel an empathy, a compassion for the situation we will act - whether for gun control, mental health, local food, a jury verdict, whatever.  How does it work this way?

"What these results suggest is that the compassion we feel for others is not solely a function of what befalls them: if our minds draw an association between a victim and ourselves — even a relatively trivial one — the compassion we feel for his or her suffering is amplified greatly."

Like my friend the angry beekeeper, you get what you name.  Whether or not the honeybees were "really angry," he perceived them as such and treated them that way.  It was how he perceived them that created the expectation of harm. 

I've had enough of fear.  I prefer to be on the side of those who encourage a deep compassion for human suffering and from that place articulate for action to lessen the plight of others.

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.

The Place Where You Live. Citizen Activists May Have Had Something To Do With It.

 

ORION Magazine carries a lovely section called The Place Where You Live.  Readers are invited to submit a contribution telling about the place where they live.  This following piece was printed in the July/August 2012 issue of ORION.  You should be able to access it on line when the September/October issue is in print.

Meanwhile, here is Gary Pace's beautifully spoken homage of gratitude to those who stood up to a nuclear site even after construction had begun and halted it - for good:

"Bodega Head, California.  I come to the Bodega Headlands often to make offerings and prayers.  Offerings to the land - the wild northern California coast - and prayers of gratitude to people who, fifty years ago, had the vision to block construction of a nuclear plant on this spot straddling the San Andreas Fault.  During the 1906 earthquake, this coastline moved 15 feet.

Tucked behind dramatic cliffs, and close enough to the ocean for me to hear sea lions and glimpse migrating whales, is a small pond called "Hole in the Head."  This crater is the site initially excavated for the plant's foundation; now it only hints at the disaster that could have unfolded.  The largest nuclear reactor of its era would have been built on the edge of the fault.

What outrageous hope gave people the courage to believe they could halt construction of a nuclear site even after construction had begun?  Who could have predicted their unlikely success, outlined in this understated park sign?

'Proximity of the San Andreas Fault would have significantly increased risks to marine, tidal, and atmospheric environments.  Citizens and scientists collected signatures, filed lawsuits, wrote letters, and appeared at hearings ranging from Sonoma County to Washington, D.C.  The project was finally abandoned in 1964 after 8 years of controversy and citizen action.'

If it had opened as planned, the reactor would have outlived its utility by now.   I would be standing here before the shuttered structures of cooling towers, looking out over the yard littered with barrels of spent fuel rods, a lonely witness to the radioactivity that would persist for scores of human lifetimes.  The electricity produced would have long since passed through local residents' light bulbs and dishwashers, and we'd be tapping new sources of power for our contemporary needs.

My thoughts drift to those folks who worked for such a reasonable outcome.  As the sea breeze blows across my face, I arrange flowers in honor of the legacy these activists left behind, an ephemeral monument to something that never came to pass."

 

What's Really In That Plastic Bottle Of Bottled Water You're Drinking?

There's nothing odd about 3 corporations taking control of our drinking water.  It's just business.

Nestle, Coke and Pepsi have their eye on the future.  The future is water: who has it, who controls it, who needs it.

Mahatma Ghandi said, "There is enough water for human need, but not for human greed."

This is where we have arrived: corporate greed.

Yet, it's not all their fault.  Corporations sell what we buy.  When we stop buying we change things.

Water covers 75% of planet Earth; only 1% of that is drinkable.  In the next 15 years almost two-thirds of the human race will be struggling for clean drinking water.

Water is the new oil.

Now does it make sense?

Nestle, Coke and Pepsi are sucking the earth dry, bottling the water and selling it back to you at 1900 times the original cost to them.

What do you think goes into a bottle of Arrowhead, Ozark, Dasani or Aquafina water?  Pure mountain stream refreshment?

Over 40% of the bottled water on the shelves is merely good old-fashioned municipal tap water.

Recall a few years back when Atlanta was suffering the drought?  Lakes were down to dirt?  But the local Coke plant kept on bottling?

The joke's on us.

Compounding the problem is the petrochemicals that make up the plastic bottles that hold the water.  These cancer-causing petrochemicals leach out into the water you drink, you give your kids to drink.

And it doesn't stop there.  Not everyone gets curbside recycling service.  And even if we did there are not enough recycling plants or uses for the bottles.  So they end up in landfills where the petrochemicals leach into the soils and ground water.

And it doesn't end there.  Our oceans are becoming a toxic plastic stew as more and more bottles are swept into the lakes, rivers, streams and sea.  Marine life eats the broken down plastic pellets.

Here's a few sources you can check out to begin your research and then decide for yourself if it's time to give up the bottle:

Tapped - the movie. This 2009 Indie Winner examines the role of the bottled water industry and its effects on our health, climate change, pollution, and our reliance on oil. The high cost -- to both the environment and our health -- of bottled water is the subject of this documentary that enlists activists, environmentalists, community leaders and others to expose the dark side of the bottled water industry. Americans may rethink their obsession with bottled H20 when they learn of the unregulated industry's willingness to ignore environmental and health concerns, and the problems that arise as a result.  Produced by Atlas Films.  Trailer.

We made it easy for you: click here to watch Tapped, all 75 minutes of it.

Just to balance the argument a bit, here are Top 10 Reasons why bottled water is a blessing.  And from a Quaker.

Grading your bottled water.    

Do You Have The Right ID To Vote?

According to a recent article in the July/August issue of Sierra magazine, "Can I See Your ID?" readers are informed about new state laws that disenfranchise Latinos, African Americans and young people.

Of course, Sierra is reporting from the point of view of three groups of people who have traditionally leaned toward environmental issues and might be disenfranchised as a result of the new laws.  Excerpt.

"Say you're a large U.S. corporation with an interest in defeating pro-environmental candidates for public office. Which voters would you most want to keep away from the voting booth? At the top of your list would be Latinos, African Americans, and young people.

According to polls, all three groups strongly and consistently support environmental issues. A Pew poll in March, for example, found that 82 percent of 18- to 30-year-olds support increased federal funding for alternative energy, compared with just 54 percent of those over age 66. And when asked whether climate change is a "very serious" problem, 59 percent of Caucasians agree, while 69 percent of African Americans and 74 percent of Latinos do."

What is of greater global concern are the ways in which the new laws rob populations of the right to vote on any issue under the guise of preventing "voter fraud" by requiring proof of citizenship  and specific forms of photo IDs.  Excerpt.

"Now, just in time for November's general election, comes a coordinated plan to disenfranchise those green voters. Acting from cookie-cutter legislative templates furnished by the corporate-financed American Legislative Exchange Council, 176 bills to restrict voting rights have been introduced in 41 states since the beginning of 2011, and bills have passed—or are on the verge of passing—in 14. The ostensible reason for the legislation is to eliminate the threat of voter fraud—in the words of Kansas governor Sam Brownback, to "ensure the sanctity of the vote.""

What kind of voter fraud do we have here?  We are all familiar with the "Tale of Hanging Chads." Is voter fraud so prevalent that the laws must have such a long-arm reach?  Maybe blue inked fingers?  Excerpt.

"Efforts to solve this phony problem vary from state to state. Alabama, Kansas, and Tennessee require would-be voters to present proof of citizenship prior to registration. Florida makes voter registration so onerous that the League of Women Voters has ceased its registration efforts there. The most common suppression laws, however, require voters to show a specific form of photo ID at the polls. In Texas, licenses to carry concealed firearms are considered valid, while student IDs are not.

Twenty-one million American citizens, in fact, lack the kind of photo ID that would pass muster under these laws. Among that number are 18 percent of young eligible voters, nearly 11 percent of Latinos, and 25 percent of African Americans. Because of the laws' discriminatory effect, the Justice Department has been able to block voter ID laws in states with prior histories of discrimination—such as South Carolina and Texas—under the Voting Rights Act. Elsewhere, however, even though U.S. Attorney General Eric Holder has said that making it harder for people to vote "goes against the arc of history," the feds have declined to take action."

You know me well enough by now.  I say bring it home with a story.  Here's one:

"In Pennsylvania, for example, the ACLU and the NAACP are suing to overturn that state's voter ID law. Their lead plaintiff is Viviette Applewhite, a 93-year-old woman who marched with Martin Luther King Jr. in Macomb, Georgia, and has voted regularly since casting her ballot for John F. Kennedy in 1960. She never learned to drive and lost her photo ID when her purse was stolen years ago. She's tried to obtain a new ID, but the state can't find her birth certificate and so won't issue one.

"I think it stinks," Applewhite says in an ACLU video. "It's the most ridiculous thing I ever heard of. I got in line and marched with [King]. There was so many rights we did not have. The way they take them away, we'll be right back where we were before.""

Click here to listen to Applewhite in her own words.

Q&A Tuesday: Why Should Lawyers Care About Marriage?

Q:    Why should lawyers care about the institution of marriage?

A:    As the institution itself seems to declining, the legal definition of marriage is up for grabs.

As reported by Aja Gabel in the current issue of The University of Virginia magazine, The Marriage Crisis, marriage has declined over the past 50 years and continues to decline.  Excerpt.

"Only about half of Americans are married now, down from 72 percent in 1960, according to census data. The age at which one first gets married has risen by six years since 1960, and now only 20 percent of Americans get married before the age of 30. The number of new marriages each year is declining at a slow but steady rate. Put simply, if you are an unmarried adult today, you face a lower chance of ever getting married, a longer wait and higher divorce rates if you do get married. The Pew Research Center recently found that about 40 percent of unmarried adults believe that marriage is becoming obsolete.

While marriage is in decline, unmarried cohabitation is on the rise. Fifteen times the number of couples today live together outside of marriage than in 1960. Almost half of cohabiting households include children.

Why should we care about what may be a failing institution? Brad Wilcox, U.Va. sociology professor and director of the National Marriage Project, argues that the institution of marriage still symbolizes core values important to intimate relationships.

“Marriage conveys a sense of meaning, purpose, direction and stability that tends to benefit adults and especially children. People who get married have an expectation of sexual fidelity, and that fidelity tends to engender a sense of trust and security,” Wilcox says. “There is no kind of similar solemn ritual marking the beginning of cohabitation.”

Allison Pugh, also a U.Va. sociology professor, has a slightly different take on it. She says that it isn’t so much the institution of marriage that is important, but rather how well a family cares for children, regardless of its structure. Children need stability, nurturing and love, but both married and unmarried parents can provide those things, Pugh says.

Is America having a “marriage crisis?” Certainly, the institution of marriage is changing and it’s worth taking a look at why and where it might end up. It’s a question that a number of researchers at U.Va. are trying to answer by exploring the role of women in the workforce, emotional expectations for partnership and marriage’s benefits or costs to individuals and families."

In an nutshell, what has changed?  Women became "liberated."  We obtained college educations and entered the workforce.  While discrepances in equal pay and opportunity continue to exist, women have more choices available to them while society seems ready, albeit resigned, to let us have them.  Personal fulfillment is a goal rather than a tantalizing dream. Divorce is more acceptable than shameful.  Birth control translatesinto higher economic brackets for both partners as women take control of their fertility and their earnings.

Ultimately, marriage in America has changed because Americans have changed:

"Marriage has changed because America has changed. We can’t return to the model of marriage from the mid-20th century because we no longer live in the culture or the economy that created it. And some would argue that we wouldn’t want to return to it even if we could. Both men and women have greater choice than they did 50 years ago not only in regard to whom they marry, but also if they do and what kind of family they want to build. And, if the experts agree on one thing, it is that these choices are some of the most important we make for our own happiness."

Click here to read more about the changing legal definition of marriage. 

Which brings me to where things stand with the Prop (H)8 Trial.  No one was more surprised than I to learn that the good - albeit sometimes whacko - folks in my adopted state of California swigged, chugged and guzzled the Kool-aid before adopting Prop(H)8 banning same-sex marriage.  Surely, we are at least as liberal as Vermont, as smart as New York, as socially savvy as Massachusetts.  But no.

Do you want to know where things stand with the Prop 8 trial?  Click here to read an exceptionally nuanced 5-part series exploring the future of Defense of Marriage Act (DOMA), the Prop 8 trial and marriage equality.

What is particularly broad-minded about the series is the author's willingness to step beyond the two cases (DOMA and Prop 8) to reflect upon the more global topic of the future of marriage equality in the United States.  Excerpt.

"A vision of the future of marriage equality in the United States

Yesterday, I argued that the DOMA case should be decided before Prop 8 because it fundamentally changes the arguments to be made against California’s marriage ban, and other bans like it across the nation.  Today, I want to take that a step farther and look past the two cases to the future of marriage equality in general.

Marriage equality currently stands at a tipping point in the United States, will polling beginning to shift to the majority in our favor, DOMA and Prop 8 at play before the Supreme Court, and marriage referenda in three states in November.  While the legislative and judicial tracks are currently moving in parallel and do effect each other, I believe that the legislative track will eventually (and within the next few years) be exhausted, and further victories will have to come through the courts.  A Supreme Court ruling on DOMA this year, rather than Prop 8, puts the marriage movement on more solid footing for the future."

Folks, the times they are a changin.

What was it that Aaron Sorkin said in his commencement address to the graduates of Syracuse University?

MR. SORKIN “You’re too good for schadenfreude, you’re too good for gossip and snark, you’re too good for intolerance — and since you’re walking into the middle of a presidential election, it’s worth mentioning that you’re too good to think people who disagree with you are your enemy.”

Who Here Has Given Jury Service?

Would it surprise you to learn that it's not nearly so many as we might think or have been led to believe:

"Twenty-nine percent of the adult American population has served as a juror. The remaining 71% of Americans live with, live next to, work with, or otherwise hear about the experiences, good and bad, of those 29% who have lived it first hand."

- Tom Munsterman
Director Emeritus, Center for Jury Studies
http://www.ncsconline.org/D_Research/cjs/

The media is replete with hair-raising jury and juror stories derived from jurors on high-profile cases, Twittering jurors, pathological liar jurors responsible for causing a mistrial, blogging jurors, texting jurors, flirting jurors, sleeping jurors, Facebook-ing jurors and those who truly want to do a good job.

What's a lawyer to do?  Look no further than the National Center for State Courts Center for Jury Studies.  Following is the Mission Statement:

"Most Americans are more likely to experience the American jury justice system as a juror than as any other type of participant in the legal system. The Center for Jury Studies is dedicated to facilitating the ability of these citizens to fulfill their role within the justice system and enhancing their confidence and satisfaction with jury service by helping judges and court staff improve jury management. To do so, the Center engages in cutting-edge research to identify practices that

- promote broad participation by the community in the jury system
- respect jurors' contributions to the justice system
- utilize jurors' time effectively and make reasonable accommodations for their comfort and privacy, and
- provide jurors with the decision-making tools necessary to make informed and fair judgments in the cases submitted to them."

The Center for Jury Studies disseminates this information through technical assistance contracts, educational programs, and public outreach.

You might wish to check out the publications on such topics as jury size, jury nullification and effective voir dire to learn how to expand the process of justice through your community and courtroom leadership.

Q&A Tuesday: Focus Group Research And Confidentiality Agreements.

Q:     I am a lawyer who wants to run my own focus groups.  What do I need to know about confidentiality?

A:     Three things: (1) Always Secure a Signed Confidentiality Agreement; (2) Pre-Research Orientation; and (3) Who Stays and Who Goes.

Always Secure a Signed Confidentiality Agreement.  The confidentiality agreement assures the participants that we will not use their private information in exchange for their agreement that they will keep secret the confidential information gained during the course of the research.  Typically each participant is asked to read, complete, sign, and submit a written confidentiality agreement prior to being seated for the project.  Do not email the participant a copy of the agreement ahead of time.  Present it to the participant after she has shown you her driver's license to verify who she is and has signed in for the project. 

The agreement should provide for at least the following:

In exchange for financial compensation, the research participant acknowledges and agrees that:

• The participant is being retained to help decide a real lawsuit;
• The participant will participate fully, thoroughly, and respectfully;
• All information received, heard, discussed, and seen during the course of this project is related to the project and is confidential unless and until required by a court of law;
• The participant shall not disclose any information, opinion, or details about the project in any manner or form whatsoever to any person, entity, business, or organization unless and until required by a court of law;
• The participant will be videotaped and/or photographed;
• His or her videotaped participation, comments, photographs, written questionnaires, notes, sketches, and the like generated during the course of the project become the property of the law firm; and
  
• The participant will pay reasonable damages if he or she breaches the agreement.

Pre-Research Orientation.  Always remind the participants of the importance of the confidentiality agreement that they signed and secure one last acknowledgment of their promise. My practice is to read a statement about the need for confidentiality, have the participants raise their right hand if they agree with the statement, and secure that agreement on videotape. This is also a good time to remind them that all notes, papers, and trash will be confiscated after the project. The trash can be returned to the law firm and shredded.

Only Lawyers and Firm Associates Attend the Research.  Many litigation consultants agree that parties and experts do not attend or testify during the research project. There is a lot of gray area about the confidentiality of focus groups with parties and experts in attendance. Many clients are too vested in the outcome or are simply unable to hear strangers discuss their cases. Your job is to listen and observe the proceedings; not hand-hold the fretful client.

Moreover, having the client or experts address the focus group destroys neutrality. Absolute neutrality is critical to receiving predictive and probative information. Typically, if the client appears for the purpose of being evaluated one of two things will happen: You will have folks who play the devil’s advocate and challenge you or, worse, you will have those who want to be your cheerleaders and advocate strongly regardless what the evidence shows. Neither role works and both hurt. You do not want to risk it.  Substitute a clip of the video-taped deposition instead.

 

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?