June 18th, 2021

Characteristics of the Personal Injury Plaintiff/Hero

 

Aristotle discusses the traits of the tragic hero. The hero does not need to be an award winner or have recognized accomplishments. The key is be true to life and realistic.  There is a lack of pretense. The audience needs to see the hero as appropriate to his or her position in life. There is no exaggeration, and the hero is consistent in his actions.

Applied to a personal injury case this means the plaintiff is an honest person. There is never overstatement. What is important is honesty in pursuit of deliberate choices. In other words the hero has thought out his goals and direction in life. He is pursuing a deliberate path. With candor and straight forwardness he admits failure and success.

In a tragic play the audience sees the realistic person as they see themself. In a personal injury case the same phenomena occurs with the jury when they see plaintiff as a true to life person who tells it like it is. This is appealing and worthy of consideration. In tragedy the hero must face adversity. Once the audience relates to the hero they relate to the hero facing adversity.

 

    June 1st, 2021

    Personal Injury as Tragedy

    Having learned from Simon Rifkind all trials are plays, I sought a theatrical formula appealing to audiences over time that mirrors a personal injury case. I found  Aristotle in Poetics sets forth what has become the classic formula for tragedy and it fits a personal injury case.

    Plato and Aristotle argued about whether the study of tragedy is worthy of a philosopher’s time. Plato maintained all theater including tragedy is  entertainment not rising to the level of philosophical interest. Aristotle disagreed. Aristotle argued tragedy at the highest level involves the audience. The audience feels the tragic plot in cause and effect sequences that mirror universal truth.

    In high level tragedy two things happen to the audience. First, they pity the tragic hero. Second, they fear the tragic result (the adversity) could happen to them. Aristotle maintains when this occurs the audience experiences a cathartic event – a purification or spiritual renewal. According to Aristotle, when members of the jury identify with  plaintiff, pity the tragic result dealt plaintiff, and fear the result could happen to them, a catharsis occurs in the verdict as the jury rights the wrong.

    It is important to note tragedy is neither staged nor made up. As taught by Aristotle tragedy represents reality.  People recognize tragedy and if possible want to remedy tragedy. When a personal injury case has the dynamics of tragedy we have a case worthy of trial production.

      May 10th, 2021

      Learning from Simon Rifkind

      Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).

      Q. Judge there  has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?

      A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… . I’m not aware of any decline in the capacity of trial lawyers.

      Q. What are the requirements of a successful trial lawyer?

      A. It is essential a trial lawyer come into the courtroom knowing his case.

      A, He must know the facts.

      B, He must know what he is trying to establish.

      C, must have a strategy and a program for achieving it.

      To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”

      To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”

      Q. So what would you do to become a quality trial lawyer?

      A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.

      Q. Do you try a case before a jury different than a bench trial.

      A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.

      You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.

      The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.

      (Edited by PAT).

       

        April 10th, 2021

        Lessons from Simon Rifkind

        Beginning in law school law school I knew I wanted to be a trial lawyer. This meant studying trial lawyers. I started with Simon Rifkind. From Rifkind I learned trials are plays.

        Simon Rifkind was a Wall Street lawyer and partner in the firm Paul, Weiss, Rifkind. He was appointed by Franklin D. Roosevelt, as Federal Judge, Southern District of New York

        (1941-1950). He voluntarily left the federal bench because he was bored with poor lawyering which, according to Rifkind, was the rule rather than the exception. He returned to trying cases.

        Rifkind’s passion was trying cases. He was a renaissance trial lawyer who tried different types of cases. He tried cases in various areas to learn new aspects of  life.

        Once a case goes to trial, Rifkind knows the dynamics of trial take place. To Rifkind, a trial is a play. There is a hero (usually our client) and a villain (usually the opposition). The jury is the audience, the judge, lawyers, and witness actors. The lawyer has a unique position as he is both an actor and producer of the play. Rifkind teaches, trials like plays, must have a theme. The theme should announce the client’s cause with the ends of justice.

        Rifkind is right, a trial is like a play. From a client standpoint, the biggest mistake occurs when the client appears to be too involved in trying the case. This is off plot. The lawyer is the person who is expected to try the case. When the client appears over involved the client loses the image of the hero and becomes a wanna be lawyer. 

        The lawyer is like a duck, calm above the water, below the water paddling to stay afloat. The lawyer keeps a cool demeanor in the face of adversity occurring at trial. The lawyer shows professionalism to opposition counsel, witnesses, and the judge. The lawyer is neither a bully nor out of control. There is nothing wrong with destroying an opposition witness, and this at times needs to be done, with jury permission and professional firmness.

        It is important to recognize that unlike a play the stage in trial is anywhere a juror may observe the client, lawyer, or witnesses. Rifkind would agree to dress and act like going to and being in church at all times anywhere in or even near the courthouse. Lack of professionalism observed by a juror harms the case.

          March 18th, 2021

          Lessons from Musashi-The Book of Wind

          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.

          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 ourselves. In this way we constantly reevaluate ourselves.  Remember though to be yourself. When we change our methodology because of others we lose ourselves. “Eventually you are going to have to come back to your natural state. So why leave it in the first place?” Id. at 96.

          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.

          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 than concentrating on prepared notes live in the moment of the trial.

          Trial Lawyer as Warrior. In today’s legal climate the Gerry 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.”

            February 20th, 2021

            Lessons from Musashi-The Book of Fire

            In Musashi’s third book, The Book of Fire, Musashi concentrates on the spirit of the warrior/trial lawyer:

            Soul and Feeling. We must never overlook the all important aspect of spirit. “To release the spirit one must accentuate the work with mediations of the heart and the soul. Not doing so is the same as performing music note for note, with no emphasis on the ‘feeling’ of the particular piece… . The Way of the warrior is filled with soul and feeling. Without it the warrior is essentially ‘dead’ even though he may appear to be very strong.” Musashi’s, Book of five Rings (Translated by Stephen Kaufman, Hanshi 10th Dan) (1994) at 55.

            How to Practice. Musashi stresses the need for a warrior to properly practice. Proper practice requires visualization in training. When you practice technique and apply your “soul” to it “you will find that the technique will reveal to you the manner in which it must be used to your personal advantage.” Id. at 57.

            Pressure the Opposition. “By keeping pressure on the enemy, you will keep him constantly in a defensive posture. … Your basic attitude should be of wanting to overwhelm him and unsettle his spirit. This will permit you to control the situation and make good your attack… .” Id. at 59. Remember changing rhythm and timing throws off the opposition. “There are times when, although you are prepared to go right through the enemy, you lay back momentarily and then, without waring, leap in and through.” Id.

            Opposition Attacks. Never be overwhelmed by the opposition. “You can ensure this by keeping your spirit tall and your resolve strong. … Should the enemy attack, strongly and calmly, you must become one with the attack, and through superior resolve cut him down swiftly.” Id. at 60. Never permit the opposition to gain an advantage. “[E]ither you lead the enemy or he will lead you.” Id. at 61. ‘You must come to understand the importance of attacking while the enemy is attacking and, in doing so, step on his sword, making him lose balance and advantage.” Id. at 63.

            The Snake. “Think of strategy as being both a snake’s head and a snake’s tail. Never permit yourself to become entangled in the small points of combat. Do not become stricken with a single minded attitude.” Id. at 76. Be flexible with the understanding “there is more than one path to the top of the mountain.” Id. See both the large and the small. Focus on the large and refrain from needless diversion into the small.

            Control the Battle. Either you or the opposition will control the battle. To control you must understand the opposition. Knowing the spirit of the opposition is the first step of control. Then maintain control over the opposition’s actions. “Embody the spirit by having the spirit to win.” Id. at 77. “You must control… by possessing a greater spirit than that of the [opposition.]” Id. at 79. “The only thing of importance in the way of strategy is the willingness and ability to truly defeat the enemy in actual combat with a long sword.” Id. at 78.

              January 30th, 2021

              Lessons from Musashi-The Book of Water

              With Musashi’s second book, The Book of Water,  I continue with the warrior/trial lawyer metaphor:

              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.

               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.

              Purpose. “The martial arts [and trials] are not a game… . You must mean it when you strike… . If you do not, you will certainly get hurt. The only reason to draw your sword is to cut down the enemy.” Id. ad 31. The warrior/trial lawyer must “go straight to the heart of the matter… .” Id. at 33. Musashi teaches the main purpose of the warrior is to defeat the enemy. “Do not be side-tracked by the appearance of the enemy or yourself. Do not be conscious of the particular technique you will use. This causes hesitation. …” Id. “Your attack must be filled with conviction and purpose. In this way you defeat the enemy regardless of his abilities.” Id. Your attitude will be recognized by your opponent and he will prefer to fight someone else. Id.

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

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

                January 16th, 2021

                Lessons from Musashi-The Book of Earth

                Gerry Spence uses the metaphor of a warrior for a plaintiff trial lawyer. Taking from Gerry and the classic warrior treatise Musasahi’s Book Of Five Rings I apply Musasahi’s “martialist” advice to litigation and trials:

                Develop Technique. The warrior first learns proper battle tactics to survive in battle. The first step to becoming a trial lawyer warrior is to develop proper technique. Develop technique by reading  trial masters, observing quality lawyers, and trying cases. A martialist knows technique must be instilled into the subconsciousness so it becomes instinctive. The ability “reveals its true identity to a warrior only when the ‘spirit of the thing itself ‘ feels comfortable as a vehicle for its own expression.” Musashi’s, Book of Five Rings (Translated by Stephen Kaufman. Hanshi 10th Dan) (1994) at 11.

                Forget Technique. It may sound contradictory, but in battle the warrior forgets technique. “Development of technique is essential to understanding of purpose. Once a specific technique has been understood, the warrior stops using it on a conscious level because in combat having a conscious identity imposes limitations.”  Id. at xi. The same is true in trial- believe, prepare, then try the case instinctively as it develops.

                Warrior Consciousness. The development of “warrior consciousness” is ongoing. “Only from a constant search from within, based on one’s own lifestyle, can the truth be known.” Id. at 5.  A trial lawyer must first know himself. Then, according to Musashi, to understand the qualities of a successful trial lawyer, look for successful qualities in other professions. “To learn the sword study the guitar.” Id. at 6.

                Rhythm and Timing. “There are good times and there are bad times for for everything.” Id. at 19. Musashi teaches when we understand time we also understand rhythm. To Musashi “[i]t is absolutely essential to understand the timing of Universal harmony.” Id. To restructure time we need an understanding and realization of the universe or else our substance will be infected with error and we will not be able to properly perform in battle. Id. This comes with constant practice with putting attention on intention. Always prepare “with timing and rhythm uppermost in your mind.” Id.

                Losing. Musashi teaches that death to a warrior is not necessarily shameful. The same is true for the lawyer who losses. Applied to a trial Musashi says many types of lawyers have lost-some for the right reason and some for the wrong. The only shame in losing is to lose for the wrong reason. According to Musashi there is no shame to a lawyer who loses after thorough preparation and asking for the right amount for the right reason without consideration for his own gain.

                Continue to Learn. Musashi teaches a warrior who is an expert in his particular form is still subject to defeat. “It is doubtful that anyone truly understands the ‘real’ way of strategy, much less lives it.” Id. at 3.  Mastery is something we never stop seeking to obtain. Musashi believes when we think we know it all we should retire. The same holds true for a trial lawyer.

                  December 13th, 2020

                  MERTON & THE TAO

                  In Merton & The Tao (Dialogues with John Wu) we learn the Chinese concept of The Dao: ” The Cosmic Dao is immanent, always present and always emerging. It is creative but is not a supreme creator god who gives birth to the world through divine contemplation or the exertion of a supreme will. The Cosmic Dao generates the essence of the world “giving rise in its fluctuation to the complementary polarities of yin and yang.” Britannica.com (Dao).

                   A major theme of the Dao is to connect with the natural order of things. When we do this we act in harmony with all things which brings a sense of strength and ease. At the highest level we have what Merton refers to as Skill. Skill is “an adaptive responsiveness to change.” Merton & The Tao at 95. Skill is “a unification of the physical and mental.” Applied to trial  Skill is “a knowing that is intuitive, not intellectual.” Id.

                  In trial  skill involves more than the spoken word.  Skill involves the body. Skill leads to natural movement that is aesthetically pleasing. It is like a gentle wind with rhythm and timing a sacred dance. The beauty of the movement reveals the Dao-the natural order of things.

                  Movement has an important role in how our message is received. Movement communicates at the subconscious level.  The subconscious level is where our emotions lie. Emotion is a prime motivator in decision making.

                  Skill is not attained spontaneously.  Developing skill requires mindful training with a specific method. Attaining skill requires time and assiduous effort. Once skill is attained there is no method to it as it is internalized. 

                  Practice movement such as dance. All movement should be mindful. A good movement exercise is Tai Chi. See You Tube Trial Lawyers (Tai Chi) Short Form where I demonstrate the Short Form with posts on the moves.

                    December 8th, 2020

                    First Week of June-Philosophy of Navy Squash

                    Years ago when the Naval Academy started their squash team they competed with Ivy League schools who had established squash traditions. They were initially out matched but built a winning tradition based on the following philosophy:

                    Prepare for your mission.

                    Believe in yourself.

                    Accept the possibility of failure.

                    Give your best effort.

                    Never, never quit on yourself.

                    (James Zug, Squash, A History of the Game, 141-42)