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)

        November 30th, 2020

        Frontiers of Trauma-Crash Phases and Energy Exchange

        Here are preparation notes for cross examination of defense medical expert in a personal injury case:

        Trauma. In trauma start with the injured person’s story of the impact and the energy exchanged from the impact. To evaluate traumatic injury begin with an understanding of the person going through the crash phases.

        A traumatic event is divided into three phases: 1) Pre crash phase: 2) Crash phase; and 3) Post crash phase.

        Pre Crash Phase-Here we look to the person before the traumatic event. Acute or pre existing conditions are taken into account. A traumatic event is more injury producing to a person with pre existing conditions such as degenerative disk disease. As we age we degenerate and this includes progression into degenerative disk disease. Making the person less able to handle a traumatic event. Other pre crash considerations include the body position before trauma, expectancy  and gender.

        The Crash Phase. “The crash phase begins at the time of impact between one moving object and a second object. The second object can be moving or stationary and can either be an object or a person.” Kinematics of Trauma. In a motor vehicle collision three impacts occur: 1) The impact to the vehicles; here collision energy may be absorbed by the vehicles seen in vehicle damage. A heavy duty bumper allows the energy to continue with less dissipation into the people in the vehicle. 3) The third impact may be to the occupant’s internal organs striking the chest wall, abdominal wall  and skull. Id.

        The Post Crash Phase. This phase begins with the care of the injuries. The post crash continues for a lifetime in a permanent personal injury case.

        Energy Exchange. In a  traumatic injury case it is important to evaluate and understand the energy exchange, and the forces involved. Medical providers and juries relate to cases involving the exchange of significant energy or force. There is a common sense relationship between the exchange of significant force and injury. 

        The Law of Conservation of Energy and Newton’s Second Law of Motion. “The law of conservation of energy combined with Newton’s second law of motion describes that energy cannot be created or destroyed but can be changed in form.” Id. Applied to an automobile collision, the motion of the colliding vehicles is energy. When the vehicles collide their energy is dissipated by the bending of their bodies. Energy is then dissipated inside the vehicles as occupant bodies strike objects inside the vehicle. Energy dissipation continues inside the structures of the bodies of the occupants as their organs stop their forward motion against the chest wall, abdominal wall and skull. This translates to personal injury.

          October 30th, 2020

          Role Reversal

          Harper Lee in To Kill A Mockingbird says [“y]ou never really understand a person until you consider things from his point of view.”  As a trial lawyer it is essential for me to understand this reality. One way to do this is role reversal.

           Client. I listen when relating to my client. After listening and understanding I role reverse.  I see myself in my client’s shoes. This means all aspects of my client as well as his injury. I become my client and internalize how I feel in his skin.

          Defense Lawyer. I also become the defense lawyer. This means having lots of cases as most insurance defense lawyers do. This means having to answer to home office. This means trying to win the case. What facts do I need to know? What facts are bad for me as the defense lawyer? What facts are good for me? How do I feel if  plaintiff is an honest likable person and his lawyer is likable?  How do I feel if  plaintiff and/or his lawyer are not likable?

          Witnesses. This means experts and lay witnesses. What is my motivation for being a defense expert or lay witness. Am I preventing frivolous lawsuits? Do I do this to make money or help a friend and this is what is most important? Do I do this because I like to work or want to get involved? These answers help better deal with the witness at the time of deposition and and  trial.

          The Judge.  I become the judge. As the judge I want to be seen as fair and impartial. I want to follow the law. I do not want to be reversed. In a close case I will go with the better lawyer. He will be my advocate if there is an appeal.

          Jurors.  I become the jurors. In jury selection I learn background facts of jurors that allow me to become the juror. What do I think of the case on first impression? What makes me want to root for plaintiff? What leads me to want to see plaintiff in a negative light

           Keep doing role reversal. I role reverse in my cases and in my personal life. Role reversal makes me a better lawyer and a better person.

            October 10th, 2020

            Facts with Feeling

            “Then where Should I start?”

            “Start what, for Christ’s sake?”

            “Researching the history of the area. Of Derry Township.”

            ‘”Oh. Well. Start with the Fricke and the Michaud. They’re supposed to be the best.”

            “And after I read those-“

            Read them? Christ, no! Throw em in the wastebasket! That’s your first step. Then read Buddinger. Branson Buddinger was a damned sloppy researcher…but when it came to Derry his heart was in the right place. He got most of the facts wrong but he got them wrong with feeling.”

            Stephen King, It (1986).

             Although facts are important what matters to the jury is feeling. We must feel the case so the facts are felt.  To relate to the jury with feeling we begin by discovering the story of our client. To do this we emotionally connect with what our client has gone through and how this feels. Once we accomplish this and accomplishing this takes immersion into our client’s life we arrive at the emotional level of the case.

            This allows us to draw on our emotional experience and connect with the feelings of our client. When we feel with our client we have emotional honesty and convey this feeling to the jury. Through emotional connection we do this naturally without trying to sell the jury.We connect with the jury in a straight forward common sense manner, avoiding legalese and complexity. 

            The feeling of our client which we mirror flows into the courtroom. The jury relates to this feeling because it is honest and true to life. The facts become subservient to the feeling of the case. Our client has this feeling, we have this feeling and our feeling is given to the jury. When the jury accepts our feeling as its own the facts merge into our feeling.

              September 24th, 2020

              Success

              To laugh much.

              To win respect of intelligent persons, and the affection of children.

              To appreciate beauty.

              To find the best in others.

              To give one’s self.

              To leave the world a better place, whether by a healthy child, a garden patch, or a redeemed social condition.

              To have played and laughed with enthusiasm, and sung with exultation.

              To know even one life has breathed easier because you have lived-

              this is to have succeeded.

              Ralph Waldo Emerson

                September 9th, 2020

                Cross Exam of Defense Forensic Economist

                This cross examination discussion is from my cross examination notes in a survival action economic loss case.

                Forensic Economist. Agree you develop estimates for numerous variables that affect the recovery in tort cases. Agree in a survival action these variables are: 1) Base Earnings; 2) Earnings Growth Rate; 3) Fringe Benefits; 4)  Personal Consumption; and 5) Discount Rate.

                Base Earnings Rate. Defense forensic economists will start as low as possible. When they begin too low cover how the low base rate was arrived at and why a low base rate will lead to a lower economic loss amount. Demonstrate the rate of pay at which the economist should have started.

                Earnings Growth Rate. Another way the defense economist can understate economic damages is through the “earnings growth rate.” Earnings do not grow in a linear manner until retirement. Typically they peak about ten years before retirement. Here time must be spent with our economist to determine and understand a fair economic growth rate. When the defense economist fails to do this and understates the growth rate demonstrate in cross examination this leads to an understatement of economic damages.

                Fringe Benefits. The defense economist will start with a low base income rate and fail to add fringe benefits. “Data from the last few decades reveals that fringe benefits have increased significantly as a percentage of overall compensation. These benefits now account for almost 30%… of total compensation. ,,, Damage calculations must therefore include a valuation of fringe benefits.” David Gordon, A Forensic Economics Primer (Journal of Comprehensive Research).

                Consumption. The defense economist may try to overstate personal consumption. This is because the amount of personal consumption is deducted from lifetime earnings before the discount rate is used to arrive at net economic loss. Future earnings of the deceased are adjusted for his consumption. See id. at 44-45. Consumption covers expenditures on goods and services, but does not include joint family expenditures. When possible the economist will look to actual expenses, but this does not work in the case of a young decedent. Have an understanding of how your economist is addressing personal consumption, and make sure it is solid. Hold the defendant economist to a similar analysis to prevent getting away with overstating consumption which results in understating net economic loss.

                Discount Rate. The United States Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) addressed the issue of the proper discount rate in a personal injury case involving future economic loss. The Court reasoned in all personal injury cases involving future economic loss “it is reasonable to suppose that interest may safely be earned upon the amount that is awarded. Id. at 537. Thus, the ascertained future benefits should be discounted. The Court pointed out the discount rate should be one earned on the best and safest investments. Id. The injured plaintiff is “entitled to a risk-free stream of future income to replace his lost wages; therefore, the discount rate should not reflect the market’s premium for investors who are willing to accept some risk of default.” Id. The Court concluded the amount of future economic loss must encompass the amount the injured plaintiff would have earned during each year he could have worked but for his injury and the appropriate discount rate “reflecting the safest available investment.” Id. at 538. Have  the Jones case when cross examining the defense economic expert. This is because the defense expert will likely use a high discount rate arrived at at least partially from stock market return rates. Remember, the higher the discount rate the lower the net economic loss amount. The use of the high discount rate deflates economic loss contrary to our Supreme Court.

                  August 3rd, 2020

                  The Tao of Trial (Spontaneity)

                  For connection with the jury I follow the Tao of Trial.

                  Preparation. In any phase of trial from voir dire to closing argument I prepare. Clarence Darrow memorized poems and quotes he planned on reciting during trial. I write out my opening statement, my direct and cross examination questions and my closing argument. I go into every phase of trial with at least an outline on what needs to be covered.

                  Rehearsed v. Spontaneous. Although I have a planned presentation for every phase of trial, I move through the trial with mindfulness at every moment of trial. This allows me to be with the jury in the moment, regardless of  preparation.

                  The Way of the Tao. Trying  the case in the way of the Tao is to recognize the concept of change. Change in trial does not usually occur because of my prepared presentation.  “Change is innate in all things and situations.” F. Capra, The Tao of Physics at 116 (5th Ed. 2010). Change occurs naturally and spontaneously. Id. “Spontaneity is the Tao’s principle of action, and since human conduct should be modeled on the operation of the Tao, spontaneity should also be characteristic of all human actions.” Id. 

                  Acting in Harmony with the Trial.  I act spontaneously according to my true nature. This means trusting my intuitive intelligence which is innate and in the moment. Rather than force myself, I adapt to the trial moment. “In the words of Huai Nan Tzu, those who follow the natural order flow in the current of the Tao.” Id. at 117.

                  Prepare and Forget.  To try the case at the highest level I discover our client’s story and show the story at trial. In each phase of  trial I have imaged the phase and prepared accordingly. Once I get to the phase I forget my planned presentation, I live in the moment and trust my intuitive spontaneous nature. I include the jury as we live together in the trial moment.

                   

                   

                    July 27th, 2020

                    Listen

                    It is easy for me to talk. It is easy to think when another is talking as I prepare to talk. My tendency is to think and talk, think and talk.

                    It is difficult to listen. It is difficult to internalize what a person is discussing without thinking ahead at the expense of listening. 

                    Listen is defined as: to hear something with thoughtful attention : give consideration listen to a plea. (Webster). “Thoughtful attention” is the key to what it means to listen. “Thoughtful attention” cannot be done without thinking only about the message. As the definition says when one is listening he is giving the message “thoughtful attention.”

                    I now try listen. This means I concentrate on listening. Listening changes how I process. This is because I hear the message with “thoughtful attention.” Two things happen: I internalize the message without filtering it with thoughts on response; and, the speaker intuitively realizes this and infers I care.