May 16th, 2017

Advising Client

This is how we advise our client in a personal injury case: First, fair value cannot be obtained from the insurance company unless we can and will try the case.  Second, all trials are plays, and the theatrical genre that fits a personal injury case is the Greek Tragedy. Third, the formula for successful tragedy is: a hero, who sustains adversity, does everything in his power to overcome the adversity, but fails to overcome the adversity.

Once this is understood our client is advised to do the following:

Always Tell the Truth. The truth and nothing but the truth is our client’s story. We never deviate from the truth. Any detour from the truth is death to our case. So rule number one is tell the truth. Now when our client tells the truth he does so in strong language. This means nouns and verbs. Forget adjectives and adverbs. Forget weak phrases and words like “pretty sure,” “I think,” “maybe,” “little.” Just tell it like it is from the heart.

Follow Doctors Orders. The adversity our client is dealing with is his injury. For his injury he needs to go to his doctor and listen to his doctor. If our client asks what he should do for his injury we respond do what the doctor orders. If the  doctor says physical therapy go to physical therapy. If the doctor says get an MRI then get an MRI. If our client wants to try other treatment like chiropractic then he goes to his doctor and his doctor directs chiropractic treatment.

Overcome Adversity. We push our client to move through the treatment steps. We push our client to do everything possible to recover. On work we have our client take direction from the doctor. Whenever possible keep working. Working gives our client needed income and allows for a positive self image which means faster recovery. This assumes work is not aggravating the injury which is where the doctor needs to weigh in. Again we have our client listen to his doctor.

Activities. As with work we advise our client to get back into his pre-injury activities as soon as possible. Again our client needs to take direction from his doctor. Activities are an important barometer on recovery. If our client cannot get back to his pre-injury level of activities he has a permanent injury. Often he has residual strength deficits and/or range of motion limitations which prevent a resumption of pre-injury activity level. We  address permanent pain our client is left with.

Making the Case. Once treatment is complete we have our case. Assuming our client has followed our advise and done everything he can to overcome his injuries he need only tell it like it is from the heart. It sounds simple and it is as the truth rings with the authenticity of a quality case.

 

    May 10th, 2017

    Trial Lawyer Resilience and “Boys In The Boat”

    This is my take on how a trial lawyer is like a Pocock cedar racing shell. James Daniel Brown, In Boys In The Boat (Viking 2013), discusses George Pocock, a master shell builder in the 1920s and 30s. Brown writes about Pocock’s discovery of cedar as the ultimate wood for a racing shell; with the result being “the boat as a whole [is] under subtle but continual tension caused by the unreleased compression in the skin, something like a drawn bow waiting to be released.”

    “To Pocock, this unflagging resilience-this readiness to bounce back, to keep coming, to persist in the face of resistance was the magic in cedar.” This unseen force imparts life into the shell. “As far as Pocock is concerned a shell that does not have this “life” in it is unworthy. Id. at 139.

    This passage rings true of the worthiness of a trial lawyer. The trial lawyer is under a subtle but continual tension in trial-like a drawn bow. The trial lawyer must have unflagging resilience- a readiness to keep coming especially in the face of resistance. This is the unseen make up of a trial lawyer. With this make up the trial lawyer is worthy of the responsibility of representing an injured person against the resistance of the insurance industry.

      April 14th, 2017

      Learning from Thomas Merton-The Humble Trial Lawyer

      The humble trial  lawyer  has a better chance of trying her case at the highest level. According to Thomas Merton “[t]rue humility excludes self-consciousness… .” Thomas Merton, Seeds of Contemplation at 112 (New Directions 1949).

      When we are humble we are beyond thinking of ourself. We are only concerned with our client, with the pursuit of justice and accomplishing this at trial. In this state we have no illusions to defend. Our moments are free.

      The humble lawyer “can do great things with an uncommon perfection because she is no longer concerned about incidentals, like her own interests and her own reputation, and therefore she no longer needs to waste her efforts in defending them.” Id. at 113. “For a humble [lawyer] is not afraid of failure. In fact she is not afraid of anything, even herself, since perfect humility implies perfect confidence in the power of … [believing in herself and her client’s case] … and there is no such thing as an obstacle.”

       

       

       

        March 26th, 2017

        Learning from Thomas Merton

        Thomas Merton in THE WAY OF CHUNG TZU discusses the classic Ju philosophy of Confucius. A philosophy “built on basic social relationships and obligations that are essential to a humane life and … develop the human potentialities of each person in his relationship to others.” Merton, THE WAY OF CHUNG TZU at 17-18 (New Directions 1965).

        By fulfilling the commands of nature which are commands of love we develop an “inner [subconscious] potential for love, understanding, reverence and wisdom.” Id. at 18. Here we live at the highest level. (According to Merton, Confucius claims that it took until he was 70 to reach this level).

        When we apply Ju philosophy to the practice of law we practice law at the highest level.  Merton outlines three steps to accomplish this:

        Compassion. We must have a “compassionate and devoted love, charged with deep empathy and sincerity, that enables [us] to identify with the troubles and joys of others as if they were [our] own.” Id. As lawyers this means we must have a compassionate and devoted love charged with sincerity and empathy for our client and our jury. We must feel our client’s plight and have a feeling of love and acceptance for the jury panel. This requires internalizing compassion into our subconscious mind before the trial begins.

        Sense of Justice. We must have a sense of justice, responsibility, duty and obligation to others and society. As lawyers this means we stand for fairness for our client. When we can get fairness through negotiation we negotiate. When we cannot get fairness through negotiation we try the case. Before trial we must internalize the reality that fairness for our client can only be accomplished through trial. This must be seeded into our subconscious mind so it is our natural state or presence.

        Disinterest. We must be completely disinterested in ourself. “The mark of the ‘Noble Minded Man’ is that he does not do things simply because they are pleasing or profitable to himself, but because they flow from an unconditional moral imperative.” Id. This moral imperative is justice which, as I interpret Merton, is good in itself. “Hence, anyone who is guided  by the profit motive … is not capable of [being genuine].” Id.

        If I am at “the Merton level” in a jury trial good things are likely to happen. I am before the jury with deeply seeded love in my heart. I love my client, and I go into voir dire with love and acceptance for the panel. My mindset/feeling is recognized by the panel as acceptance. Since I am in trial only because justice demands it, my words and body language demonstrate my pursuit of fairness. Being disinterested the panel recognizes my pursuit of justice as pure rather than tainted by a profit or a for me motive. The panel is likely to respond favorably as jury members also desire fairness and they have the ability to ensure it with their verdict.

          June 27th, 2016

          I Know That I Know Nothing

          54780441 - graffiti on a brick wall - live in the moment

          Socrates reportedly said, “I know that I know nothing.” An internet review reveals many comments on what Socrates meant by his “know nothing” statement.

          To me Socrates means a wise person approaches any situation without a preconceived agenda. A preconceived agenda assumes the person has thought out a future event and pre-planned how he is going to deal with the future event. Thus, he goes into the event believing he knows what is going to happen, and how he is going to react. He then reacts in a plastic pre-planned way.

          Socrates’ statement, he knows that he knows nothing, translates to going into an event with an open mind. Following Socrates’ philosophy requires one to live in the moment without a preconceived agenda. It requires us to trust our self in the present and to react in our natural spontaneous way. In this way we are open to the moment and appreciate what is happening in the now with full awareness of the now.

          As lawyers, when we follow the know nothing philosophy, we practice law without a preconceived agenda. We are present in the moment. We are open to what is occurring in the moment. We naturally react to the moment, and this natural reaction will be recognized by others as “real.”

          Now a days I am trying to follow the Socrates method of realizing I know nothing. In the initial client interview this allows me to focus on my potential client. Thus, I listen without an agenda. I listen without pre-thinking my response before my potential client finishes her story. I allow her story to sink in, and then react in the moment, trying not to be judgmental. My potential client sees and feels my presence and that she is talking to a lawyer who is open to her story and understands her story.

          This accomplishes several things: first, it makes me a lawyer who lives in the moment, without an agenda and who fully appreciates his potential client; second, it allows me to discover my client at my highest level; and third, I am then able to obtain the best result possible by staying in the moment without an agenda.

            May 16th, 2016

            Zen Lawyer Volume II

             

            patMy Zen Lawyer Blog was started in April 2010. We have tried to use non-copyrighted internet photographs or illustrations to support our blog content. All blog written content has been drafted by Patrick Trudell and edited by Patrick Trudell.

            Several months ago out of caution, and to insure compliance with copyright law, we deleted almost all of the illustrations and photographs that supported our initial blog content. We have now made arrangements to only post photographs or illustrations that are original to us or that we have express prior approval to post.

            This has lead us to re-post prior blog content. Prior blog content that is being re-posted has been re-edited.  Additionally, we will be continuing to post new content so the blog is a combination of updating prior posts  and continuing to post new content.

             

              May 10th, 2016

              Personal Injury as Tragedy

              Having learned from Simon Rifkind all trials are plays, (See Lessons from Simon Rifkind), I sought a theatrical formula appealing to audiences over time that mirrors a personal injury case. The type of play that fits a personal injury case is tragedy. Research reveals Aristotle in Poetics sets forth what has become the classic formula of tragedy.

              Plato and Aristotle argue10223276_Sd on whether the study of tragedy was worth a philosopher’s time. Plato maintained all theater including tragedy is simply entertainment that does not rise to the level of interest to a philosopher. Aristotle disagreed. Aristotle argued tragedy at the highest level involved the audience. The audience sees the tragic plot in cause and effect sequences that mirror universal truth. In high level tragedy two things happen to members of 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.

               

              Applied to a personal injury case, when it is tried at the highest level, the jury identifies with the plaintiff and pities the tragic result dealt plaintiff. The jury also fears the result could happen to them. The catharsis occurs in the verdict as the jury rights the wrong in the only way this can be done as jurors.

              It is important to note true tragedy is not staged or made up. As taught by Aristotle it represents reality. Tragedy happens in life. People recognize tragedy and if possible want to remedy tragedy. This is why it makes sense for a personal injury lawyer to study the dynamics of tragedy. When these dynamics are present in we have a case worthy of the production of a trial.

                April 29th, 2016

                Lessons from Simon Rifkind

                 The late 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, 19604344_SSouthern District of New York, where he served from 1941-1950. He voluntarily left the federal bench because he was bored by poor lawyering which according to Rifkind, was the rule rather then the exception.

                Mr. Rifkind’s passion was trying cases. He was a renaissance trial lawyer in that he never wanted to try the same type of case more then once. Rather he wanted to try cases in differing subject areas so he could immerse himself into the area. This allowed him to learn about new areas of life and law through trying cases.

                Once a case gets to trial, Simon Rifkind believes the dynamics of trial take place. To Rifkind, a trial is a play. There is a hero (usually his 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 with their lawyer in trying the case. This is off plot. The lawyer is the person who is expected to try the case. When the client appears to be telling the lawyer what to do, or when the client appears too strident, jurors dislike the client; the client loses the image of the hero and becomes a wanna be lawyer. The client will lose when
                this happens.

                From a lawyer’s perspective it is essential to remain like a duck. A duck looks calm above the water, but below the water unobserved the duck is paddling briskly to stay afloat. The lawyer must keep a cool demeanor in the face of the adversity that will occur at trial. The lawyer must also show professionalism to opposition counsel, witnesses, and the judge. The lawyer should never appear to be a bully or out of control. There is nothing wrong with destroying an opposition witness, and this at times needs to be done, but it needs to be performed calmly, methodically and with professionalism.

                It is also important to recognize that unlike a play, the stage in a 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. This will not in and of itself win the case, but if lack of professionalism is observed by a juror this harms the case.

                  March 22nd, 2015

                  What If

                  IMG_0497Constantine Stanislavski refers to “The Magic of If” in his classic book “An Actor Prepares. Here Stanislavski instructs acting students to put themself into the emotion of their part by imagining what it is like “if” they (are in the same situation their part places them in). Thus, if an actor is playing the part of a former soldier who has had his leg amputated Stanislavski teaches to imagine what it would be like to live life with a missing a leg. This allows a natural emotional spontaneity to emerge as the actor places himself into the action aspect of the part with his leg missing.

                  Recently, I came across an excellent article in the King County Bar Association Bar Bulletin: Daniel Dugan, The Turning Point (March 2015) at 14-15, where Duggan a Trial Consultant discusses his concept he terms “The Turning Point.” Duggan teaches “The Turning Point” is a story telling technique using “counterfactual thinking.” “Counterfactual thinking is a technique where you ask a person to describe the opposite of the situation they are in now.” Id. at 15.

                  A counterfactual question “elicits rich responses revealing motivation, emotion and a glimpse at a person’s view of fate or destiny.” Id. Duggan goes on to reason that counterfactual reasoning by jurors allows them to see our case from our client’s perspective.

                  To illustrate Duggan suggests we invite the jury to imagine how our client’s life would be if her injury had not occurred. “Well to understand this ladies and gentlemen you will hear from Katie’s  [lay witness] who will tell you Katie’s life would  be… .”  This allows for two story lines-one life as a result of being injured, and the second one with a life cruising along without injury. “The gap between these two story lines will now appear huge and graphic.” Id.

                  And the jury goes from the typical mindset of does Katie deserve X amount of money to I get it X amount of money will get Katie’s life back on track. The jury’s verdict becomes the “tool that jurors use to make one life out of the two paths that lay before…[Katie] at the time of [her injury.]” Id. Although her injury forced Katie down her life changing path, the jurors can get Katie back on track because “they understand what it will take to do that.” Id.

                  Combining Stanislavski’s “if” with Duggan’s  “counterfactual thinking” allows for our jurors to have a unique perspective and gives them the tool of the gap to fill in the difference between the two lives.

                   

                    March 18th, 2015

                    Jury Thoughts

                    JuryDuty42_sgl_PRTv1Jury Selection.  Lawyers refer to jury selection as voir dire which is a Latin term for speak the truth. The problem with the term voir dire is most jurors likely have no idea what the lawyer is talking about when the term voir dire is used. To jurors what is happening is “jury selection.” When the lawyer says “voir dire” jurors hear “lawyer speak language”  from a person acting like a lawyer. This separates the speaker from the jurors who do not talk in “lawyer speak.”

                    Being a Lawyer. At Gerry Spence’s Trial Lawyers College we immediately learn “we have a problem.” The problem is we are lawyers, and in our jury trials it is generally the case that our jurors are not lawyers. Our jury is a “tribe,” and the tribe is looking for a leader. The leader is potentially one of the competing lawyers. And the leader is “the voice of the tribe.” The voice of the tribe will likely be a voice similar  to the other tribal members.When we address the tribe in “lawyerese,” speaking like a lawyer, we speak in a foreign voice with a foreign presence. So our first job is to speak like a “real person”and conduct ourself  like a “real person.”

                    Being Real. As we learn in The Velveteen Rabbit:

                    When you are Real you don’t mind being hurt,.. . It dosen’t happen all at once,… you become. It takes a long time. That’s why it doesn’t happen to [lawyers] who break easily, or who have sharp edges, or have to be carefully kept. Generally by the time you are Real [appearance is secondary]. But [fancy appearance] doesn’t matter, because once you are Real you can’t be ugly, except to people who don’t understand.

                    Margery Williams, The Velveteen Rabbit.

                    When we are real and speak in the tribe’s language we can’t be ugly to the tribe because the tribe understands.