Wyzga On Words

Florida's Own Emmett Till.

A long-time friend wrote about recent interviews with jurors in the Zimmerman/Martin trial to say that he was caught off guard to learn that some of the verdict result may have come from interpreting the jury instructions.  His impression was that jury instructions are informative but not mandatory; otherwise, why get jurors involved?  Just let the judge decide. He also expressed the view that the Florida law of 6 might not serve the system well; perhaps 12 heads in deliberations might have been a different story.  And one final requirement: a mix (male/female) should be required as well.

Here's the conundrum: jurors are required to follow the letter of the law as the judge instructs.  Oftentimes a question in jury selection will be " Can you follow the law as the judge instructs you or are your beliefs such that you would not?"  Jury instructions, in addition to being poorly written for the layperson to interpret because they are drafted by.......lawyers, are also meant to be followed as written.  And as the judge has read.  Usually the jury will get all the instructions in the jury room but they can be like hieroglyphics to decipher.  However, that is the point of a jury by peers: the community gets to figure it out.

Yes, a small jury is a more difficult jury.  Give me "12 Angry Men" any day.  The numbers give more room for argument.

The 3rd point is that a defendant is innocent until proven guilty; and that is the job of the prosecution.  If they fail, as they have done so notably before, then the jury has no way out except to vote "not guilty."  When I was in law school and then again trying criminal defense cases, I learned that most often the defendant is guilty and the defense lawyer knows the defendant is guilty.  The job of the defense is to keep the State from fulfilling its promise to the jury: prove the case.  That was done here.  If the charges as filed and the jury instructions said X and if the State did not prove X, then the jury has to go with Y.  Even though following the spirit of the law might have rendered a different verdict.

I am still nauseated by the interview given by the defense trial consultant who said they selected women who would relate to Zimmerman's fear when Martin was beating him.  I wonder what these same women  would have felt walking alone in the nighttime in an unfamiliar neighborhood to be followed by a stranger in a car, who then left the car, chased them........do you think they would fight for their life?

At the same time I still cannot fathom how this jury reconciled that someone can put into motion all these events and stand behind a law designed to protect someone in Martin's shoes.   But I wasn't there.  Who am I to say?

At the end of the day no one really knows.

Still and all, this verdict is a reflection of the collective conscience and consciousness of the community: we allow racial bias, we allow gun-toting, we allow vigilantes, we allow angry, violent, cruel behaviors toward each other, in the media, toward animals, toward the environment. It is our collective consciousness that designs our world.  It's no wonder we have become what we allow.

Florida's own Emmett Till.

Q&A Tuesday: How Does An Empty Boat Help You?

Q:    What's the use of an empty boat, especially at trial?

A:    It keeps you cool, calm, clear-headed, and collected, focused on your case and client, impervious to the devious distractions of your opponent designed to mess with your head and throw you off your game.

One of the Dharma talks I listened to during the "Be. Here. Now." retreat I attended at Deer Park Monastery was given by a monk who referred tongue-in-cheek to himself as "Young Brother" although he is actually quite an old brother. He told to a story I had not heard before which traces its telling back to Chuang Tzu, a Taoist sage living sometime before 250 B.C.  Briefly, it goes like this:

 “If a man is crossing a river and an empty boat collides with his own skiff, even though he be a bad-tempered man he will not become very angry. But if he sees a man in the boat, he will shout at him to steer clear. If the shout is not heard, he will shout again, and yet again, and begin cursing. And all because there is somebody in the boat. Yet if the boat were empty, he would not be shouting, and not angry."

His point was how to practice staying the course of calm in the face of some perceived action or word by another that might provoke us to unnecessary anger or rage.

So often it's our perceptions that make us crazy.  Zen Buddhism would say that most of our suffering is caused by our own perceptions.  And the notion of "colliding with an empty boat" is way to remind us that even if life is suffering we do not have to seek crucifixion.

In trial so often I've seen good lawyers go off the deep end because their opponent is just "messing with their head." If an emotion is true and serves you, by all means use it.  Those that distract you from the task at hand only dilute your effectiveness.

If you would like to read a bit more on the teachings of "An Empty Boat" click here to read David Nelson's post as he muses on the teachings during his drive home from our retreat on the mountain.

David's post is a good reminder that I have many many miles of river to practice.  At the very least I more fully appreciate a bumper sticker I saw recently that read, "When Jesus Christ said, 'Love your enemies' I think He probably meant 'Don't kill them.'"

What To Do When Your Witness Forgets? Step By Step By Elliott Wilcox, Attorney At Law.

“What to Do When Your Witness Forgets”

by Elliott Wilcox

Things were going great.  You'd picked a fantastic jury, delivered an opening statement that got the jurors cheering for your client to win, and your first three direct examinations had gone better than you could have hoped.  Now, halfway through the direct examination of the day's final witness, things are still going exactly as planned.  Your witness is completely prepared, easily answering all of your questions without hesitation, and the jurors are hanging on his every word, completely enraptured by the sound of his voice.  But then, midway through your examination, something unexpected happens when you ask this crucial question:

Q.  “What is the worst fraternity on this campus?”

A. “Well that would be hard to say, sir.  They're each outstanding in their own way...”

Every other time that you've asked this question during your pre-trial preparations with this witness, he's been quick to identify the offending fraternity.  But now, his brain seems to have gone blank. 

[With apologies in advance to Speed fans]:
“Ok, pop quiz, hotshot. The witness has just given you an answer you didn't expect.  If you try to ignore it, the bad answer will destroy your case.  If you try to lead the witness to the correct answer, your opponent will object.  What do you do?  What do you do?”

First things first: DON'T PANIC! 

Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you've just lost the case.  Chances are, the witness's incorrect answer isn't nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool -- you can fix this.

The next step, before you start jumping through evidentiary hoops trying to refresh the witness's recollection or establish a past recollection recorded, is to ensure that your witness really doesn't remember.

“What do you mean, 'ensure that he doesn't remember'?  Of course he doesn't remember, because otherwise he would have answered my question correctly!”

Actually, that's not necessarily true.  Often, witnesses know the correct information, but the reason why they don't answer correctly is because we ask them lousy questions.  Before you attempt to refresh his recollection, take responsibility for asking a lousy question, and then try asking your question a different way to see if that jogs his memory.  For example, set some parameters for your question, and make it easier for the witness to answer:

Q. “Based on their GPA's and disciplinary records, what is the worst fraternity on this campus?”

A. “Oh, that would be Delta house, sir.”

Sometimes, that's all you'll need to do to get the right answer.  But if rephrasing the question doesn't work, you can also try asking for the information in a different manner.  Are there other questions you could ask that get the same answer?  Consider stacking those questions on top of one another:

Q. “Who dropped a whole truckload of feces into the swim meet?”

A. “Delta house.”

Q. “Who delivered the medical school cadavers to the alumni dinner?”

A. “Delta house.”

Q. “Every Halloween, the trees are filled with underwear.  Every spring, the toilets explode.  Which house is responsible for these shenanigans?”

A. “Delta house.”

Q. “What is the worst fraternity on this campus?”

A. “Delta house, sir.”

Q. “Of course I'm talking about Delta, you TWERP!”

It's not as graceful as the first method,  but it still gets you to the correct answer without having to ask any leading questions.  But let's say none of these rephrasing techniques are working.  Regardless of how you rephrase the question, your witness still can't remember.  What do you do then?  When you've exhausted rephrasing techniques, the next step is to refresh the witness's recollection.

Jurors understand that witnesses sometimes need help remembering details.  For example, if I asked you what you were doing on July 10th of last year, you probably wouldn't be able to remember.  But, if I gave you a chance to look at your calendar, you could probably tell me exactly where you were and what you did.  That's the reason why the rules of evidence allow witnesses to refresh their recollection.  Here is the process you'll need to follow to help your witnesses remember:

Step 1.  Show that the witness can't remember.

Q. “What is the worst fraternity on this campus?”

A. “I can't remember.” 
A. “I don't know.” 
A. “I cannot recall.”
A. “I used to know, but I can't think of the answer right now.”

Showing the witness's lack of memory is an essential step that can't be overlooked.  Unless you can show that the witness doesn't remember, you won't be allowed to refresh his recollection.  There's a world of difference between the witness who can't remember and the witness who remembers the wrong answer.  You can't refresh a witness's recollection simply because he's giving you a bad answer.  (You can impeach him, but you can't refresh his memory.)

Step 2.  Show that the witness previously remembered the information.

Q. “Did you used to know which fraternity was the worst on campus?”

Q. “Prior to today, did you have an independent memory of which fraternity was the worst one on campus?”

Q. “DId you previously remember which one was the worst?”

Step 3.  Ask the witness if there's anything that would help refresh his memory.

Q. “Would it refresh your recollection to look at your report?”

A. “Yes, if I could review my report, that would help me remember.”

Q. “Is there anything that would help you remember?”

A. “Yes, if I could smell a whiff of stale beer and listen to Otis Day and the Knights singing 'Shout,' I think that would refresh my memory.”

Q. “What do you need to help you remember?”

A. “If you'd let me smash a beer can against my forehead, that always triggers my memory.”

The important thing to remember about refreshing memory is that you're not limited to showing the witness documentary evidence.  Typically, you're going to use written documents to refresh witnesses' memories, but understand that you're not limited to paper exhibits.  If there's anything that helps the witness remember, you should be permitted to use it to refresh their memory.

During this step, it's often worthwhile to have the witness explain to the jury why the item will refresh his memory and why he needs some help to remember.  For example, let's say you're dealing with a police officer who makes lots of DUI arrests each year.  By the time the case reaches trial, it's understandable that he might need some help remembering the exact details of this arrest, as opposed to the dozens of other cases he's worked.  Before he uses his report to refresh his memory, you'd want to ask him about the report.  “How soon after the arrest did you write the report?  Why did you write it?  How detailed does it have to be?  How accurate are you when you write it?  What details do you include?  Is it intended to help you remember details about the case months, years, or even decades afterwards?”  By asking those details, you help show the jurors that the refreshed memory will be accurate.

Step 4.  Show the refreshing item to opposing counsel.

Step 5.  Show the refreshing item to the witness, asking the witness to examine the item silently, and then look back at you when he's finished.

Step 6.  Ask the witness if his memory has been refreshed.

Q. “Having reviewed your report, does that refresh your memory?”

Q. “Did smelling the stale beer and listening to 'Shout' help you remember what fraternity is the worst on campus?”

Q. “Now that you've smashed a beer can on your forehead, are you able to remember which fraternity is the worst on campus?”

[If the item doesn't refresh his memory, you can still try to get the testimony in through the “Past Recollection Recorded” evidentiary predicate, but you won't be able to use the “Refreshing Recollection” predicate.]

Step 7.  Once the witness has refreshed his memory, re-ask your original question.

Q. “Now that you've refreshed your memory, please tell us, what is the worst fraternity on campus?”

A. “That would be Delta house.”

It's a good practice tip to tell your witness to turn over the document before answering, so the jury can see that he's testifying from his refreshed memory, and not merely reading aloud from the document.  The jury wants to see that the witness has an independent memory of what happened, and isn't merely parroting what he just read.

Hopefully, you'll never run into the problem of having a witness forget what to say.  But, if you decide to try cases in the real world, sooner or later, it's bound to happen.  When it does, use these quick tips to help refresh your witness's memory, and your case will be back on track before anyone even notices.

WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com

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.

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!" 

 

 

 

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.

 

 

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 ([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?