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, 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.