August 5th, 2018

Walk Toward Fear

We all have fear. Fear of the unknown. Fear of failure. Fear of success. To have fear is to be alive. To have fear is to understand risk. To have fear is to know something is at stake.

As a trial lawyer I have fear. Most trial lawyers have fear, especially going into trial. Accept fear as a good thing. When we lose fear we lose a valuable emotion. An emotion that makes us better. Better assuming we continue to walk into our fear.

While at Trial Lawyers College I wrote this poem for my son:

Walk Toward Fear

Is not fear my friend.

For without fear my life should end.

All that is unknown brings fear.

Facing fear makes the unknown clear.

The fear of failure causes stagnation.

But to venture forward brings origination.

Nothing new happens without walking toward fear.

And growth comes from moving near.

So embrace fear as a gift.

A gift that gives life its lift.

 

    June 22nd, 2018

    Imaging the Case

    Constantin Stanislavski taught his actors to image their part, and the circumstances of the play. In his method the actor has imaged his part  and how it will play prior to taking the stage. This imaging concept also holds true for for trials. Edited for trials Stanislavski teaches:

    First, we must have an unbroken series of supposed circumstances in which our trial will develop. Second, we must have a solid line of inner visions bound up with the supposed circumstances, so we have a picture in our mind of the trial playing out. During every moment of the development of the trial, we must be aware of either the external circumstances  which surround the trial, or of the inner chain of circumstances which we have imagined to illustrate the case.

    Through imaging we arrive at an unbroken series of pictures of the trial- our personal movie. As long as we trust ourself the trial will unfold similar to our inner vision. As the trial unfolds our  inner vision creates a corresponding mood which arouses emotion in the jury.

    Constantin Stanislavski, An Actor Prepares, (Translated by Elizabeth Reynolds Hapgood) (1936).

    What this means is  before the trial begins, we image every phase of the trial. This includes pre-trial motions,  jury selection, opening statement, direct and cross examination, introduction of documentary evidence and closing argument. By doing this we internalize each phase of the trial. We feel each phase  of the trial because we create the inner vision (personal movie) of  the trial.

    We know from experience the trial may take turns different from our inner vision. Stanislavski recognizes this when he teaches we must always be aware of the external circumstances of the trial. Here we must trust our case preparation, believe in ourself, accept the turns the trial takes, roll with the turns, and never quit on our inner vision.

      May 26th, 2018

      Stanislavski and Inner Forces

      To Stanislavski  the “inner forces” which we must draw upon to try a case at the highest level begins with our feelings. But our feelings must be directed and the master for proper direction of our feelings is our mind. Constantin Stanislavski, An Actor Prepares, (Translated by Elizabeth Reynolds Hapgood).

      According to Stanislavski there is a third force that must accompany our feelings and our mind to create our “psychic” trial life. This third force is our “will.” To try our case “freely” these three forces must cooperate harmoniously. Id. at 268.

      In acting and in trial there is a danger of falling into a pattern of reading lines. For the actor this means repeating the script. For the trial lawyer this means repeating pre-written questions. To Stanislavski this is seen all to often in theatre, and it is fatal. The lawyer must “speak in his own right as one placed in the circumstances created by [the trial].” On good days we are naturally harmonious meaning our feelings mind and will are coordinated. Id. at 269.

      At times there is a lack of feeling for the case, and/or a kind of dread. This may cause us to struggle with imaging the case, preparing with enthusiasm, and/or trying the case naturally. Stanislavski recognizes these times exist. He teaches two steps to jump start our inner forces.

      Feelings. To Stanislavski our feelings is the most important member of the triumvirate of feelings, mind and will. The first step to jump start our inner psychic is to call upon our feelings. Here we go inside ourself and remember how we felt in a similar situation as presented in our trial. When our emotions respond we feel the tempo-rhythm that underlies our emotions and gives rise to our external reaction. When this happens we are back on track.

      Mind. When we are stagnant we may be unable  to draw on feeling to jump start the triumvirate. The next step is to call on our mind. Here we use our mind to contemplate the facts and circumstances at issue in our case. In calling upon the mind we read depositions and review exhibits as we imagine the factual circumstances. Ideally this will jump starts our feelings and the emotions flow.

      Will. Stanislavski does not teach calling on the will to jump start the psychic triumvirate. This is because the actor does not create the script. The actor is at the mercy of the play writer, but we as the trial lawyer are the play writer. Our will is seen in our preparation for trial. Our will is evident in our immersion into the facts. Our will manifests in the initial plastic drafting of the lines for trial. After total immersion and completion of drafting we are able to believe in ourself and our cause. Once this is done we can trust ourself as our mind and emotions respond and we try our case freely and naturally.

        May 10th, 2018

        Wisdom of Pooh

        “What day is it,” asked Pooh.

        “It’s today,” squeaked Piglet

        “My favorite day,” said Pooh.

          April 20th, 2018

          Living the Facts Through Imagination

          IKeepSix1

          Constantin Stanislavski teaches how to live the facts which in turn teaches how to discuss the facts. In discussing facts this Rudyard Kipling poem quoted, by Paul Luvera, reminds me of factual areas to cover in a deposition and in trial examination, especially cross examination.  

          If we try our case mechanically, without recognizing who we are, where the emotional component lies, and how this effects decision making, we try the case without imagination.  This will translate to the jury as being unreal-nothing more than a wound-up machine, an automation.

          According to Stanislavsky, to appreciate the relevant what, why, when, how, where and who we must assimilate the facts so we understand what they stand for, where the emotional component lies, and how this impacts us and the decision making process. To do this we internalize the facts so they become an unbroken series of supposed circumstances which are based on our inner vision. Our inner vision is a combination of the relevant facts and our similar experiences.

          This creates a conscious reasoned approach to the facts which we have allowed our imagination to personally live so they come to life for us physically as well as mentally. This allows us to discuss the facts at a personal level that has and shows sincerity, the sincerity of who we are.

          Every moment we are in trial, every word we speak then is the result of the right life of our imagination. These inner visions create a corresponding mood that arouses our emotions and in turn the emotions of the jury.

          See Stanislavski,  An Actor Prepares -Imagination (Translated by Elizabeth Reynolds Hapgood)

            March 2nd, 2018

            The Magic of If

            what-ifConstantin Stanislavski teaches the word if  has a unique quality that produces “an instantaneous, inner stimulus.” Stanislavski,  An Actor Prepares, (Translated by Elizabeth Reynolds Hapgood). From an acting standpoint Stanislavski says the imaginary use of  if allows the actor to place herself  into the emotional mindset of her character’s problem, condition or event. He teaches the actor to use if  to get to the subconscious mindset of her character. The use of if  has application beyond the theatre.

            For example as trial lawyers we can use if  to relate to our client at our subconscious level. To do this we role reverse with our client and ask: What is it like if  I am in the situation of my client. When done as Stanislaviski teaches this results in personally placing ourself into the shoes of our client.

            Stanislavski says this works because if  becomes what he calls a “supposition.” He explains if does not demand we believe or not believe. Rather the use of if presents a magical hypothetical that causes us to answer the hypothetical “sincerely and definitely.” When used properly if  has three consequences:

            First, if  “does not use fear or force” or make us do anything. Rather it reassures us “through its honesty, and encourages [us] to have confidence in a supposed situation.” This allows us to image the if supposition naturally with our subconscious feelings emerging.

            Second, if  brings to the forefront of the subconscious an “inner and real activity” –meaning to answer the if supposition we must imagine ourselves in action. This according to Stanislavski leads to mental activity that results in subconscious creativity. Subconscious creativity gets us to our highest emotional level of thought and being.

            Third and most important  when used correctly we do not try to invoke our feelings when using the if supposition. Rather we concentrate on the given circumstance of the situation. When doing this we reach a “sincerity of emotions.” This is because our subconscious  feelings emerge. These are our true to life emotions in the given situation.

             

              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.