January 20th, 2022

Building a Relationship

Carl Rogers in On Becoming a Person discusses building a relationship. The first step in building a meaningful relationship is to be genuine. This sounds simple but it is not. We often project something we want to be or something and want another to think we are. But this false projection dooms any hope of building a constructive relationship.

To be genuine I must be aware of my feelings. I express the feelings and attitudes that exist within me. “It is only in this way that the relationship can have reality, and reality … [is] deeply important as a first condition [of a meaningful relationship]”. Carl Rogers, On Becoming a Person (1961).

Rogers said this over fifty years ago. He was right then and his words remain true today. Drop pretense, be yourself and allow yourself to be real in relationships. You will go beyond a false facade into a meaningful relationship.

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December 28th, 2021

C.S. Lewis on Sin

C.S Lewis in Mere Christianity teaches there are sins of the flesh and sins of the mind. To Lewis the greatest sins of these two sin categories are sins of the mind. Lewis maintains the worst sin of the mind is to think we are better than another. Thus, to Lewis the sanctimonious long time church goer who judges the prostitute entering church as a sinner and non worthy is a greater sinner than the prostitute.

William Blake goes further saying the only sin is the accusation of sin. “Accusation in any of its forms, is a negative judgment, and a negative judgment in any form ruptures relationship-the classical definition of sin.” Joseph Chilton Pearce, The Biology Of Transcendence (2002) at 128.

Both are correct. To hold myself  superior to another is wrong and a badge of arrogance and conceit. I must remember we are all made up of the same cosmic stuff. We are all in constant motion. We are all in this together. No one’s cosmic stuff is better than another one’s cosmic stuff.

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December 8th, 2021

CHUANG TZU ON THE RIGHT WAY

Thomas Merton in THE WAY OF CHUANG TZU writing on how “the central pivot of tao: relates to an artist and craftsman and to all of us in our pursuits:

[W]e see that the accomplished craftsman does not simply proceed according to certain fixed rules and external standards. To do so is, of course, perfectly alright for the mediocre artisan. But the superior work of art proceeds from a hidden and spiritual principle which, in fasting, detachment, forgetfulness of results. and abandonment of all hope of profit, discovers precisely the tree that is waiting to have this particular work carved from it. In such a case,  the artist works as though passively, and it is Tao that works in and through him. This is a favorite theme of Chuang Tzu, and  we find it often repeated. The “right way” of making things is beyond self conscious reflection, for “when the shoe fits, the foot is forgotten.”

Merton, THE WAY OF CHUANG TZU, The Abby of Gethesmani (1965) at 31.

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November 20th, 2021

Great Cross Examination-Gregory Peck

Dealing with a lying witness will happen to every lawyer who tries cases. Francis Wellman in The Art of Cross Examination (1903) discusses the perjured witness.

In Chapter IV,  Wellman points out a false testimony witness may display “in the voice, in a vacant expression of the eyes, [and] in a nervous twisting in the witness chair….” We see these traits in Mayella Violet Ewell in the the movie clip from To Kill A Mockingbird where Gregory Peck presents classic cross examination.

Wellman covers techniques to use on the unsophisticated lying witness. “Try taking the witness to the middle of the story then jump… to the beginning then to the end.” This works because the witness has “no facts with which to associate the wording of her story.” She can “only call to mind as a whole rather than detachments.”

Wellman teaches “[d]raw attention to facts dissociated from the main story as told. [S]he will be entirely unprepared.” (This is seen in the clip when Peck demonstrates Tom’s lame left arm). Then, like Gregpry Peck in our film clip, return to the facts you have called to her attention (Tom’s lame left arm) and ask her the same question again (how did the rape take place given prior testimony).

As we learn from  Wellman  she cannot invent answers as fast as the questions.”[S]he will…become confused and from that time be at your mercy.” Then Wellman says let her go as soon as you have made it clear her testimony is not mistaken but lying.

As we see in the clip, and as predicted by Wellman, Mayella Ewell, is at the mercy of Atticus Finch. She cracks as Atticus and everyone else watches. This is the ultimate cross examination of a perjured witness.

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October 18th, 2021

Direct & Cross Examination-“Six Honest Serving-Men”

Years ago I attended a Day With Paul Luvera where the great trial lawyer quoted Rudyard Kipling’s “Six Honest Serving Men” when discussing cross examination. From Paul Luvera these six question areas have served me well.

When I prepare for direct and cross I first write out my questions. This seeds my memory as I write my lines and read them back committing them to memory. At trial during direct I rarely refer to my lines. I simply have a conversation with the witness. For cross I do refer to my lines because my lines are the lines of the opposition witness. I note where in the deposition or in a document the witness line to my question is so I can impeach if he fails to agree.

In all cases I find myself referring to the “six honest serving-men.” These six friends are always with me as they often assist in deeper penetration in direct and cross. Below are some examples on how they can help:

Who. For direct I begin with who are you questions. The jury wants to know where plaintiff grew up-“Where did you go to high school and what year did you graduate?” The jury needs to learn about plaintiff”s  job and activities before her injuries so they can appreciate how plaintiff has been impacted by her injuries. On cross who are you questions are effective when the witness has misled the jury on her background. Who are you questions allow penetration into background which can lead to destruction of the witness.

What. After finding out who the witness is, I am ready for what questions. On direct of plaintiff, what happened often follows who are you. What happened elicits the story on the mechanism of the injury. Also what questions elicit the facts of the injury. On cross what questions go to the foundation for the witness’s testimony : ” What documents have you relied upon.”

When. The remember when questions are:  “When did you first have symptoms?” “When did you treat for your injuries?” “When were you last able to [engage in particular activity].” “When did you [do particular activity]?” On cross when questions pin down timing of events.

How. The how questions go to how plaintiff is overcoming injuries. If future medical is needed then this is a how question answer. If activities must be altered then this is a how question answer. For an expert how questions uncover how the expert arrived at his conclusion. For a lay witness how questions on cross go to how the witness is able to make his statement based on the facts.

Where. Where questions are important for painting a picture through testimony of where the event occurred. This holds true on both direct and cross. Key facts in every case occur at particular places. Our friend where ensures we make the place clear in the jury’s mind.

Why. The classic rule on cross examination is never ask a question unless I know the answer. This holds true on direct as well. Although why is one of my six friends, he is rarely used. When he is used, however, he can be deadly. I never use him though if he can be deadly to me.

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October 4th, 2021

The Zen of Jury Selection

Years ago after a jury trial a juror referred me to Garr Reynolds’ Presentation Zen. I continue to use Mr. Reynolds’ teaching to connect which is important for us all.

As taught by Reynolds in any conversation I need “connection.”  Without connection my listener is left with emptiness. Through connection I bound. People relate to me when I connect.

Movement and body language are important for connection. For movement I continue to practice Tai Chi, study body language and the zen concept of living in the moment.

In jury selection this means staying away from the past and the future. I guard against thinking about what I want to discuss instead of listening in the moment. I listen, engage, and connect with the other person. As stated by Reynolds there is an energy when I am present. This energy is experienced by the listener.

My body language conveys relaxation. When I relax my listener relaxes. When I am uptight my listener is uptight. Through Tai Chi I know to be soft and balanced. I breathe  deep-into my naval-rather than shallow in my chest. My position is balanced and natural. My hands stay in the “zone of truth” which is waist high moving in and out as I speak.

To connect I accept the listener even when I disagree. This makes the listener more likely to accept my message. Through Tai Chi I know strength is through non-resistance.  Resistance is a turn off. Non-resistance makes a friend. The “friend” I make may be a member of the jury. Even when the person initially disagrees his frame of reference is open to the possibility my message should be accepted. Through non-resistance and acceptance I have a chance to reach agreement and acceptance.

I also meditate to shed fear. Fear comes when I worry about defeat. This happens when I think ahead to the result. I stay in the moment  and engage with my listener. By recognizing I lack control over the result, but have control over myself in the moment, I am able to move in the present, relaxed, balanced and engaged. This gives me the best likelihood of connecting  which gives me the highest likelihood  of success.

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September 12th, 2021

Keys to High Level Performance

A successful personal injury lawyer must try the case when the insurance company is unreasonable Trial requires performance under stress. For performance at the highest level:

Prepare. First know the facts inside and out and know the law. Preparation is the foundation to successful performance. It is not the brightest who prevails it is the hardest worker. The lawyer who spends the time to internalize the facts and the law is the lawyer  who has the highest likelihood  of success. Put simply out work the opponent.

Trust Yourself. After thoroughly preparing trust yourself. Here it is essential to recognize you are ready to go. You know what you want to accomplish. You know you are able to get it done at a high level. Like all successful athletes and actors believe in yourself. This self belief results in confidence.

Accept Inability to Control Result. Recognize  the only thing you have control over is yourself. You have the ability to put the time in for preparation. You have the ability to methodically go about the trial or task. You do not have the ability to control the result. And the result may be bad. This must be realized and accepted. Doing this has a psychological or subconscious effect of relaxation and performance without the stress of having to win. This in turn allows performance to take place in the present where natural talent and instinct  emerge to allow high performance.

Visualize High Performance. Successful athletes and actors visualize the game or play before it happens. Often this is as simple as remembering past success and calling on the thought process that occurred. This is an imaginary dress rehearsal. When the event happens the successful athlete or actor is psychologically ready for high performance.

Remember Peaks and Valleys. The great coach John Wooden wrote a note to Rick Neuheisel when Neuheisal started as head football coach at UCLA. The note included the statement  “there will be peaks and valleys.” Great coaches remember the peaks and forget the valleys. No quality athlete or actor dwells on past failures. Forget about past failure and move on. This is what a successful trial lawyer must do.

Simplicity is Beauty. Remember to keep  presentation simple. When in doubt remember the rule “less is more.” Lawyers tend to talk too much and complicate the picture. This risks confusion with the  jury. Confusion with the jury is the darling of the defense lawyer’s nursery. Tell the jury what you want and why it matters. Once this is done move on. Remember  jurors want to hear what they need to know, but they do not want to hear what they do not need to know.

Never Give Up. There will be hard trial times as in “peaks and valleys.” The key is to never quit on yourself. The key is to continue to move ahead at the highest level possible. Remember you cannot control the outcome but you can control giving your best effort. Giving your best effort means living in the present at the highest level until the end.

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August 28th, 2021

The Five Tibetans

“The human energy system is an energetic webbing that permeates the entire body. It is the system that empowers the body and energizes and enlivens the mind, providing the energetic foundation upon which the body is built. It is the network through which all life energy flows.” Kilham, The Five Tibetans (1994) at 10. Kilhan points out we are incarnate beings meaning we are beings who live in bodies.

For the highest form of existence we coordinate our body and mind. To do this takes practice and exercise. For example the practice of yoga teaches to be in tune with the energy currents of our body. In this way we consciously unite mind and body.

In the 1920s an American geographer, Edwin Dingle, lived in Tibet studying with Tibetan Monks. His studies included a series of five exercises known as the Five Tibetans. These exercises, yoga in nature, increase strength, energy and mental alertness. They open up the body/mind energy system and balance energy. Read the rest of this entry »

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August 15th, 2021

Tragic Plot Applied to Trial

 

Aristotle in Poetics teaches the phenomena of tragedy and the elements of a tragic play. Applied to a personal injury case we must have a hero, who sustains adversity, does his best to overcome the adversity, but he will never fully overcome.  Our client is the hero. The adversity is the injury. Treatment is trying to overcome the injury. Not being able to fully recover is permanent injury.

Aristotle teaches plot distinguishes great tragedy. In great tragedy plot is bigger than the hero. Plot concerns how the universe works, which is universal truth. Plot is recognized as such by the audience (jury). In great tragedy the audience sees the hero like them subject to universal truth.  

According to Professor Barbara McManus, Outline of Aristotle’s Theory of Tragedy, in Poetics:

 The most important feature of  great tragedy is “the arrangement of the incidents:” not the story itself  but the way the incidents are presented, the structure of the play. According to Aristotle, tragedies where the outcome depends on a tightly constructed cause-and-effect chain of actions are superior to those that depend primarily on the character and personality of the protagonist. Plots that meet this criterion will have the following qualities:

The plot must be “a whole,” with a beginning, middle, and end. The beginning, called by modern critics the incentive moment, must start the cause-and-effect chain but not be dependent on anything outside the compass of the play (its causes are downplayed and its effects are stressed). The middle, or climax, must be caused by earlier incidents and itself cause the incidents that follow it (causes and effects are stressed). The end, or resolution, must be caused by the preceding events but not lead to other incidents outside the compass of the play (causes are stressed and effects downplayed); the end resolves the problem created during the incentive moment. Id. (Barbara McManus).

The plot must be “complete,” having “unity of action.” By this Aristotle means the trial must be structurally self-contained, with the incidents bound together by internal necessity, each action leading inevitably to the next. The worst kinds of trials are “‘episodic [where] acts succeed one another without probable or necessary sequence.” The only thing that ties the case together are events that happen to plaintiff. Events that occur to plaintiff must have a fated connection to the universal truth. While the lawyer cannot change the facts that make up the case, he “ought to show invention of his own and skillfully handle the traditional materials” to create unity of action in the trial. Barbara McManus, Outline of Aristotle’s Theory of Tragedy in the POETICS.

The trial must be “of a certain magnitude,” both quantitatively (efficient and understandable) and qualitatively (universal significance). Today Aristotle would agree trials should be straight forward and efficient showing universal truth and significant meaning so the audience responds by implementing the universal truth. 

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July 21st, 2021

Plaintiff Attempts to Overcome Adversity

 

Aristotle teaches tragedy is the imitation of action in life. Well-being (health) and ill-being (injury) “reside in action” with the goal of life being activity. “People achieve well-being or its opposite on the basis of how they fare.” Poetics (The Primacy of Plot). The “plot” in tragedy concerns the action and how the hero fares.

There are two types of plot according to Aristotle- “simple” and “complex.” Complex plot is a higher level tragedy. In a simple plot there is only a change of fortune. In a complex plot there is change of fortune and reversal or recognition or both. Reversal is change to the opposite. Recognition is change from ignorance to knowledge.

According to Aristotle when the audience identifies with the hero seeing a cause and effect series of action, and the action involves reversal with accompanying recognition, the audience relates to the plot with pity for the hero and  fear the change of fortune can happen to them. This is tragedy at the highest level.

In a personal injury case the change of fortune to the hero is the injury. The recognition is  what happens next.     This means how the injured plaintiff reacts. The audience wants to see the hero doing everything she can to overcome the adversity. The recognition can be of a profound life changing result. The audience (jury) seeing the reversal of fortune, and  plaintiff recognition she must overcome, wants justice for plaintiff.

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