February 14th, 2018

Stanislavski and The Unbroken Line

Applied to a trial Stanislavski teaches when the lawyer begins to learn the story of his client he sees it in bits and pieces. It is rare that the lawyer grasps the story instantly and is emotionally touched at a high level. More often he must take the time to internalize the facts and emotions to reach a deep understanding of the story so “a line gradually emerges as a continuous whole.” Stanislaviski, An Actor Prepares, Translated by Elizabeth Reynolds Hapgood (The Unbroken Line). Not until the line emerges as a whole is the lawyer ready to try the case.

A trial is like a play in that there are separate actors and interruptions in a play and separate witnesses and interruptions in a trial. To be successful the lawyer must deal with the interruptions by seeing the unbroken line of the trial so the trial “is an integrated whole made up of individual acts and feelings, thoughts and sensations.” Id.

To illustrate the lawyer has an idea of how the trial will progress from jury selection through closing argument. He should be able to feel how the bits and pieces of the trial will fit together to create one unbroken line that flows from jury selection, to opening though direct and cross into closing. He must see the parts of the trial as fitting together to tell a coherent story. The story of the client from the heart with natural emotion.

Even though the lawyer’s attention is constantly passing from witness to witness and from  document to document  he must never lose track of the emotional theme or unbroken line. Thus he flows with the pieces of the trial to make them an emotional coherent story to which the jury will relate.

    January 25th, 2018

    Stanislavski and Becoming the Case

    Applied to trial practice, Stanislavski teaches we cannot try a case with natural emotion unless we believe in our client’s story.  Stanislavski says we fall into habits of artificiality when we stay on a surface level with our client. This problem is magnified if we also fail our inner preparation.

    “Unfortunately, a natural creative mood is seldom spontaneous.” Stanislavski, An Actor Prepares (Translated by Elizabeth Reynolds Hapgood)(The Inner Creative State). This means on rare occasion we get into a natural creative mood and relate with the jury. More often when this does not occur we resort to mechanical habits.  We introduce false notes. The truth then becomes a trial lawyer convention which the jury sees as artificial as imagination evaporates. See id.

    According to Stanislavski: “To grasp the spiritual  nature of  [the trial] it is not enough to use one’s mind or any one ‘element’ by itself. It requires a [lawyer’s] whole power and talent, as well as the harmonious cooperation of his inner forces, with those of the [client].” Id.

    Inner preparation requires two things. First we must learn our client’s story. This requires our client reliving the emotions of the initial trauma, the recovery, and post injury ability. Then we must put ourself into the emotional mindset of our client. We internalize as closely as possible the same emotions our client  experienced and is experiencing. We do this by remembering in detail a past experience which caused an emotional reaction similar to our client.

    When this “inner preparation” is complete, and the client and the lawyer are on the same emotional wave length, the case is ready for the jury. Once the trial begins all that is needed is the “the stimulus of the simplest sort of suggestion and… the whole harmonious process of establishing…[the] inner creative [emotional] state [is released in trial].” Id. By this Stanislavski means though an internalization of the emotions of our client’s story we are able to trigger those emotions at trial, as our similar emotions are also released.

    The result is raw emotional honesty. The jury feels this emotion at its subconscious level. The jury will favorably respond. This is because the jury sees “a clear-cut definite objective…[with] a solid and correct inner state.” Id.

      December 16th, 2017

      THE WAY OF CHUANG TZU-THOMAS MERTON

      WHEN THE SHOE FITS

      Ch’ui the draftsman  Could draw more perfect circles freehand   Than with a compass.

      His fingers brought forth   Spontaneous forms from nowhere. His mind   Was meanwhile free and without concern   With what he was doing.

      No application was needed   His mind was perfectly simple   And knew no obstacle.

      So, when the shoe fits   The foot is forgotten,   When the belt fits   The belly is forgotten,   When the heart is right   “For” and “against” are forgotten.

      No drives, no compulsions,   No needs, no attractions;   Then your affairs   Are under control.   You are a free man.

      Easy is right. Begin right   And you are easy.   Continue easy and you are right.   The right way to go easy   Is to forget the right way   And forget that the going is easy.

      Thomas Merton The Way Of Chuang Tzu (Abbey of Gethsemane 1965).

        November 18th, 2017

        Stanislavski and Communication at Trial

        StanislavskiConstantin Stanislavski in the first of his acting trilogy An Actor Prepares (Routledge, translated by Elizabeth Reynolds Hapgood) calls it “Communion.” To Stanislavski “it is possible to look at and to see or to look at and not to see.” Id. at 212. On stage the actor can see and feel everything that is going on, or the actor can be some place beyond the auditorium. The same holds true for a trial lawyer. 

        The Eye is the Mirror of the Soul. Stanislavski teaches for sincerity the eyes must look and reflect “the deep inner content of the soul.” Id. This means to effectively communicate at trial we must internalize and become identified with our cause before we enter the courtroom. We cannot give ourself wholly to our cause until we become identified with it and are transformed. This allows us to become one with the jury and our witnesses. To fail to internalize our cause will lead to a mechanical presentation that lacks sincerity with a resulting failure to communicate with witnesses and the jury.

        Lawyer and Witness. Stanislavski says a quality playwright presents actors who convey an “inner-communication.” We must do the same with our witnesses. Stanislavski would have the witness take the stand to share her feelings and what she believes with the jury while the lawyer takes in those feeling and thoughts. “When [the jury] is present during such an emotional and intellectual change, [they are] like a witness to a conversation. [The jury] has a silent part in the exchange of feelings, and is excited by their experience.” Id. at 213-14. This only occurs when witness and lawyer “make every effort to maintain an uninterrupted exchange of feelings, thoughts and actions among themselves.” Id. at 214.

        Self-Communion. Before we can communicate at an emotional and intellectual  level we must first engage in self-communion. Self-communion occurs when we get in touch with our inner life energy. The Hindus call this our Prana. The Chinese call this our Chi. According to Stanislavski “in addition to our brain … the nerve and psychic center of our being, we have a similar source near the heart, in the solar plexus.” Id. at 215.  We must establish a connection between these two energy centers. The cerebral center is the seat of our conscious (rational) mind and the solar plexus is the seat of our subconscious (emotions). When we make the connection our brain “holds intercourse” with our feelings. When we are at this level in trial we are able to commune with our self “audibly or in silence…with perfect self -possession.” Id. at 217.

        Communion with Witness. Stanislavski explains actors have lines. A mechanical actor memorizes her  lines, waits until the other actor finishes and then says her next line. We can easily slip into this habit concentrating only on the plastic prepared questions that automatically follow after the witness answers. To be in communion with the witness we must engage in an “unbroken flow” with the witness. After asking the question follow the answer so your thoughts penetrate the  consciousness of the witness. Here we need to listen, internalize, and add with our eyes what can not be put into words, but shows in our soul there is communion. Then we ask our next question. This connection which requires “concentrated attention, technique, and artistic discipline,” continues through the examination.

          September 10th, 2017

          Stanislavski and The Super-Objective

           Stanislavski’s Super-Objective applied to a personal injury trial is the Theme of the Case. In the words of the Stanislavski edited for trial lawyers we learn:

          Great trial lawyers know a successful trial must have a “larger, vital purpose…the power to draw all of [the lawyer’s] creative faculties and to absorb all the details and smaller units of [the case]. … [A great theme] is human and directed towards the accomplishment of the basic purpose of the [trial]…it will be like a main artery, providing nourishment and life to both [the plaintiff and the jury].” Stanislavski, An Actor Prepares (Translated by Elizabeth Reynolds Hapgood)(The Super-Objective).

          To Stanislavski a great theme is beyond the individual it is “broadly human, and universal in implications.” Id.  Applied to a trial Stanislavski teaches that a lawyer may not be able to come to a conclusion about his trial theme until he conducts several focus groups.  Mock juries help develop the theme;  we are able to hear how non lawyers relate to the facts, and what they feel are important to the case. This will lead to the theme.

          To Stanislavski  winning themes often involve “questions of freedom, justice, happiness, great joy, great suffering.” Id. “Above all preserve your super-objective and through line of action. Be wary of all extraneous tendencies and purposes foreign to the main theme.” Id.

          Stanislavski also recognizes successful trials involve polarization. “Every action meets with a reaction which in turn intensifies the first. In every [trial], beside the main action we find its opposite counteraction. This is fortunate because the inevitable result is more action. We need that clash of purposes, and all the problems to solve that grow out of them. They cause activity which is the basis of [a great trial].” Id.

          Stanislavski gives a three part formula for a great trial: 1) inner grasp (meaning the internalization of the theme of the trial); 2) the through line of action (meaning from jury selection through closing we move with and through; 3) the super-objective (our theme).

            July 4th, 2017

            Fourth of July

            This Fourth of July I am focusing on acceptance. Acceptance to me means  lack of prejudgment. Acceptance means assuming another person has good qualities, Acceptance means finding the good qualities by engaging in nonjudgmental discussion. Even if we disagree there can still be acceptance.

            Acceptance requires honesty. So long as we are truthful and willing to listen to each other we can find commonality. Commonality as in mutual respect even when we have different view points. Even with different view points we can remain honest with one another and respect mutual honesty and willingness to openly discuss differences.

            The world would be a boring place if we had no differences. Different races, different economic backgrounds and different ages give us variety. We can learn from others who are different than us so long as we are willing to accept the other person for who they are and what they have to offer.

            When we accept the other person, the other person recognizes this. The other person may not change their view, but we accept each other. Differences combined with acceptance make us a great nation.

              June 9th, 2017

              Talking to the Subconscious Mind

              Decisions are made using our conscious mind and our subconscious mind. Emotional decisions are made at the subconscious level, then justified by the conscious mind. To ignore the subconscious mind when working with others on making decisions is to ignore the decision making part of the group mind. 

              In Medical Hypnotherapy (Peaceful Planet Press 2007) Tim Zimmerman Sierra outlines nine rules for effective communication  with the subconscious:

              1. Speak in Positive Terms.  This is because the subconscious does not register a negative.  Rather it forms pictures and responds to imagery. Although we consciously understand a negative, our subconscious mind only understands the picture formed. Thus, when speaking in negative terms the subconscious mind only registers a picture and responds to the imagery of the picture. For instance if a golfer tells himself “I don’t want to hit my ball into the water” the subconscious mind pictures the water and images hitting the ball into the water. Id. at 111.

              2. Speak in the Present Tense. The subconscious mind is effectively moved if the goal is occurring now.  Mr. Zimmerman Sierra says word  therapeutic suggestions so that the client sees the desired goal happening now. 

              3. Paint Pictures. Here we tell our story in a descriptive way calling into play the listeners past similar experience. Then her subconscious mind accesses her picture of a similar experience as she follows us based on her imagery.

              4. Give a Reason. The suggestion is more likely to be accepted by the critical faculty of the conscious mind “and passed to the subconscious mind when it is linked to something that seems logical.” Id. at 112. “The subconscious is constantly making associations, and is primarily interested in two types of information-meaning (A means B) and causality (B occurred because of A). Therefore, you give the subconscious what it is looking for by using reasons in your suggestions.”

              5.  If too great, make it incremental. To be effective our suggestion must be believable. Thus, if the suggestion seems too big or too far off use incremental suggestion language that indicates change over time: “more and more now,” “every day and in every way,” “becoming,” “growing,” and “greater.”

              6. Include Timing. Avoid words like “will,” “soon,” and “tomorrow.” These future words are meaningless to the subconscious.  This is because to the subconscious mind the only time is now in the present moment. “Whenever possible, include specific information about when or under what circumstances the… [suggestion takes place].” Id. at 114.

              7.  Suggest Action.  Here we are instructed to suggest to our listener’s subconscious- take action to accomplish what needs to happen. “When suggesting  action, be sure to connect taking the action with achieving the goal… .” Id. 

              8. Use Positive Emotions. Strong emotional words help to open the conscious mind and lead to a more powerful impression on the subconscious. Thus, we are to “[u]se words that generate compelling positive images.” Id. at 114. This creates positive imagery that is “emotionalized.” Id.

              9.  Specific and Short. Use common easily understood language. Be specific and clear on what the goal is. Refrain from language that is too general. Rather be specific and avoid generalizations. 

                May 29th, 2017

                Stanislavski and The Threshold of the Subconscious

                Applied to trial work, Stanislavski teaches the key to success is to reach the state where the subconscious mind functions without interference from the conscious mind. In this state we are relaxed, we have no fear of failure, and we are uninhibited. We forget who we are from an ego self conscious standpoint.

                Here “we achieve inner freedom as well as physical relaxation.” Stanislavski, An Actor Prepares (Translated by Elizabeth Reynolds Hapgood)(On the Threshold of the Subconscious). When we reach this state we have truth and faith in our actions. This is the state Stanislavski terms “I am.” Id.

                We get to this level by seeding our client’s case into our subconscious mind. Our faith in the case naturally follows and we move toward “I am.” To get to “I am” we discover our obstacles and learn to deal with them.

                We eliminate the obstacle of fear by getting in touch with our subconscious mind. We remember an event in our life where we felt similar emotions to those of our client. We emotionally bond with our client.  And we naturally convey this to the jury.

                We eliminate the obstacle of vagueness which Stanislavski teaches occurs when “a part may be worked out wrong, or its objectives may be indefinite.” Id. (Indefinite gaps that must be filled). “The only way to deal with [this] situation is by clearing up all that is lacking in precision.” Id. Meaning we fill factual gaps for the jury so our story is clear.  Our story flows without factual gaps.

                We eliminate the obstacle of being too conscientious. We sense this problem when we have a feeling of forcing ourself. We are going through emotions we do not have. Here we remember to be ourself.  We trust ourself and swim with the current.

                When a lawyer gives himself to the pursuit of the objective of his client’s case, he does it completely. He becomes free to function in accordance with his and his client’s needs and desires. Through his own subconscious experience he tries the case as an expression of his creative subconscious. Id.

                When we reach “I am” advocacy we and our client and story merge in the courtroom. We find it easy and pleasant to try the case. We are in the ocean of our subconscious. Id.

                  May 16th, 2017

                  Advising Client

                  This is how we advise our client in a personal injury case: First, to get fair value  from the insurance company we must be willing and able to 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. 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.