Zen Lawyer Patrick Trudell

October 28th, 2024

Plaintiff Cannot Overcome Adversity

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Definition of tragedy includes:

A serious drama describing a conflict between a (hero) and a superior force and having a sorrowful conclusion that elicits pity or terror. (Webster)

This definition stems from Aristotle and Poetics. Aristotle teaches in high level tragedy the plot controls the hero. The tragic plot must concern a universal truth greater than the hero. The audience knowing the universe in sequences of cause and effect knows the hero will succumb to the adversity. At the highest level the hero continues while accepting and challenging their new situation. Although the audience relates to a positive hero in their new situation, nonetheless, it pities the hero and fears the adversity may happen to them.

To have a personal injury tragedy case worthy of trial- the plaintiff must have permanent injury. The key is how the plaintiff hero reacts to the permanent injury. There must be a valiant effort to overcome, then an acceptance of the new situation, followed by positive change. When this is seen by the jury the trajectory formula is complete.

Jurors know they have the ability and the duty to remedy the adversity by providing fair compensation. When the jury sees an honest true to life person, who has been dealt adversity, does everything in her power to overcome and adapts to the new situation moving forward despite being a victim of fate beyond her control, the jury sees the tragedy and will respond with a verdict.

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September 13th, 2024

Personal Injury as Tragedy

Having learned from Simon Rifkind all trials are plays, I sought a theatrical formula appealing to audiences over time that mirrors a personal injury case. I soon found tragedy. Research reveals Aristotle in Poetics sets forth what has become the classic principles of tragedy.

Plato and Aristotle debated if the study of tragedy is worth a philosopher’s time. Plato maintained all theatre including tragedy is entertainment that does not rise to the level of philosophical discussion. Aristotle disagreed.

Aristotle argued tragedy at the highest level involves 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 can 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 tried at the highest level, the jury identifies with 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 it rights the wrong felt by the jury.

It is important recognize tragedy must be real. As taught by Aristotle tragedy 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 a case it is worthy of the production of a trial.

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April 8th, 2024

Masters of the Art of Living

The master of the art of living makes little distinction between work and play, labor and leisure, mind and body, information and recreation, love and religion. They hardly know which is which. They simply pursue their vision of excellence at whatever they do, leaving to others to decide whether they are working or playing. To them they are always doing both.

James Michener (edited by PAT)

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December 12th, 2023

The Varieties of Religious Experience-Mysticism

I live, yet not I, but God liveth in me. Only when I become as nothing can God enter in and no difference between God and me remains.

“This overcoming of all the usual barriers between the individual and God is the great mystic achievement.” In mystic states the person becomes one with God.

This is the “everlasting and triumphant mystical tradition,” unaltered by race or creed. “In Hinduism, in Neoplatonism, in Sufism, in Christian mysticism, in Whitmanism, we find the same recurring note, so that there is about mystical utterances an eternal unanimity which ought to make a critic stop and think, and which brings it about that the mystical classics have, as has been said, neither birthday nor native land. Perpetually telling of the unity of man with God their speech antedates languages, and they do not grow old.” William James, The Varieties of Religious Experience (1902)(Mysticism).

An example of a mystical experience is cited by James:

In my consciousness of God which comes to me sometimes a presence not a personality but something in myself makes me feel a part of something bigger. In these times I feel myself one with the grass, the trees, birds, insects, everything in Nature. I exalt “in the mere fact of existence, of being part of it all-the drizzling rain, the shadows of the clouds, the tree trunks, and so on.” As the years go by such moments continue to come, but I want them continually. This is because I know “so well the satisfaction of losing self in a perception of supreme power and love,” that I want this perception to be constant. (James citing Starbuck’s Collection).

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November 25th, 2023

Proud to be a Trial Lawyer

In Washington I am a member of a plaintiff association of trial lawyers initially called Washington State Trial Lawyers Association. Several years ago our organization changed its name to Washington State Association for Justice. This is because most of the people we represent do not end up in trial. What we do is:

Help Injured People. We represent injured people. I only take a case if I can get my client more of a recovery after my fees are paid than they would receive without my involvement. I take cases on a contingency fee meaning my client pays me nothing to represent them unless I recover in the case. In the end I help an injured person because without my involvement as a trial lawyer the insurance company will not pay fair value.

We Stand for Justice. In our society when a person is injured through the negligence of another justice is obtained by way of a monetary recovery. As a trial lawyer I have the ability to get a fair recovery by way of a trial and standing for justice.

We Make Society Safer. In our society it often takes a financial message to get wrongdoers to correct their negligent conduct. As a trial lawyer I have the ability to demonstrate the wrong and the damages that flow from the wrong. This in turn leads the jury (the voice of the community) to inform the community we do not accept negligent conduct.

We Lobby for the Common Person. Insurance companies are wealthy powerful corporations with agendas to turn maximum profit for their shareholders. They pay millions of dollars every year in lobbying to place barriers on damages. The common person who sustains injuries has no lobby to take on legislation proposed by insurance lobbies. National and state trial lawyer associations are the lobbies for the common person. Through my membership in these trial lawyer associations I support efforts to defeat agenda legislation sought by the insurance companies.

Obtain Justice. I only represent people who are injured through the negligence of another. I stick to the truth. Telling the truth translates to success in negotiations and in trial as we all have a feel for the truth. Juries want the honest injured person to receive a fair recovery. They want to see society safer through their verdict. When the insurance company recognizes this without or with a trial and the case is complete, I have the satisfaction of getting justice for my client and benefiting the community.

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November 10th, 2023

Books That Helped Me Be a Better Trial Lawyer

These are books helped me be a better trial lawyer:

Red Badge of Courage. Stephen Crane’s classic short novel about Henry Fleming a young Yankee Soldier in the Civil War is a lesson in overcoming fear. I always have some fear of trial because of the unknown. As a trial lawyer I must be like Henry Fleming in Red Badge of courage and overcome fear going into trial.

Catcher in the Rye. In trial pretense is death. No one knows a “phony” better than Holden Caulfield. J.D. Salinger’s best novel reminds me of the importance of staying true to myself and the good and bad of my case.

On the Road. Here I met Dean Moriarty and learned the importance of appreciating the uniqueness of each client. Dean is up and Dean is down. Dean stands for adventure. Dean reminds me each case is an adventure with my client.

To Kill a Mockingbird. This one hit wonder of Harper Lee reminds me to stand tall against overwhelming odds. I prepare for trial, I believe in my case, accept the possibility of defeat, give my best effort, and never quit on myself. The movie version of the book with Gregory Peck as Atticus Finch is a bonus where I see how a trial lawyer carries and conducts themself.

The Last Trials of Clarence Darrow. Donald McRae’s 2009 book covering Clarence Darrow’s last big cases gives me insight on how the greatest early trial lawyer in American history prepared for and tried his cases. Like Darrow I immerse myself in the case, memorize poems and theme lines, throw away my notes, and try the case from my heart.

Honor Killing . Clarence Darrow is in the second trial covered in this non- fiction historical piece. The hereo is not Darrow. The hero is the State of Hawaii, and the Hawaii Bar Association. Honor killing made me proud to be a trial lawyer standing for justice despite what those outside (who usually know little of the truth) may say or print.

Seabiscuit. A wonderful sports book about a horse. Seabiscuit taught me to accept who I am, do the best with what I have, and this may be lights out good. The saying you can’t judge a book by it’s cover applies to horses and lawyers.

Bury My Heart at Wounded Knee. as a trial lawyer I stand for justice. I represent the little guy against big corporations. I care about protecting the rights of those who need protection. When I read how American Indians were treated by our ancestors, in this non-fiction work by Dee Brown written from the American Indian perspective, I am reminded how important it is to advocate for the less powerful.

The Autobiography of Malcolm X. All trial lawyers, especially young trial lawyers, will gain perspective from the 1960s and race in America from The Autobiography. This book impacted me years ago and it still impacts me today.

Seven Story Mountain. I have a spiritual life. A spiritual life makes me a a deeper person and a better lawyer. Thomas Merton’s biography took me on Merton’s spiritual journey about how the greatest Christian mystic of the 20th century evolved. Like William James, Merton has little use for fundamentalism. Spiritual life is found by the individual, and is beyond doctrine..

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October 24th, 2023

First Impression

Malcome Gladwell says we form our first impression within seconds (two seconds to be exact). He points to studies showing not much difference between a first impression based on seconds and an impression based on prolonged exposure. (See What the Dog Saw).

On reflection this makes sense in our age of sound bites and rapid fire media coverage. This also makes sense when we look at ourselves from an evolutionary standpoint. Our prehistoric ancestors had to immediately react on first impression to survive.

Applying the reality of first impression to a jury trial means our jurors form an impression of us before we open our mouths. According to Gladwell people like and trust people who appear confident and smile. To fail to make immediate eye contact and smile when jurors enter the courtroom is to miss the initial first impression opportunity.

Jury consultants David Ball and Harry Plotkin teach the importance of jury selection and opening statement in establishing the case in the minds of the jurors. Jury selection is the first time we have a dialog with our jurors. The great Clarence Darrow is reported to have whispered to his second chair after jury selection “the trial is over.” (He was correct in that case).

Opening statement is the first time we introduce the case to our jurors. Both Mr. Ball and Mr. Plotkin teach to begin dispassionately with the conduct of defendant. Then introduce plaintiff in a factual way without trying to sell the case. The aura is that of an accurate historian where the facts call for justice in favor of our injured plaintiff. This leaves a first impression of objectivity. When we do this with a pleasant demeanor coupled with an aura of acceptance we make a favorable first impression. Although the trial is not over we are on our way to success with a favorable first impression.

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October 15th, 2023

Tribute to Howard Nations-The Spielberg Method

At times in jury selection I am faced with overcoming a jury bias about frivolous lawsuits.

The problem with challenging the belief is that it will not succeed. In the words of the great Washington State trial lawyer, Paul Luvera, “You can challenge people on their bias, their life experience, and their values, but it is a waste of time.”

Conversely, agreeing with the belief is disingenuous as we know most lawsuits are not frivolous. Being disingenuous with the jury is false and sensed by the panel.

When faced with a jury panel where members express the belief many lawsuits are without merit Howard Nations teaches “The Spielberg Method” which suspends the bias belief for the life of the trial.

When I am faced with a juror or a group of jurors who are tort reform/frivolous lawsuit believers I copy Howard Nations and The Spielberg Method:

First, I acknowledge the frivolous lawsuit tort reform bias. Not only do I acknowledge it I help justify it. “Mr. Jones I understand you are saying our legal system must ferret out bad lawsuits. You believe our legal system has no room for a frivolous lawsuit.”

Second. I link my case and my client with the bias. “Mr. Jones, Brad Barnes and I agree with you. A frivolous lawsuit clogs up the court and delays recovery for a legitimately injured person.”

Third, I then agree with the jurors to suspend the bias during the life of our trial.”Mr. Jones do you agree there are proper lawsuits with legitimately injured people?” “Can you agree if we demonstrate Brad Barnes has a proper lawsuit with a legitimate injury to provide justice as a juror in the form of fair compensation?”

Prove Legitimate Case. As with all cases, to succeed in The Spielberg method I must demonstrate a solid personal injury case from opening statement through closing argument. I show my client is a straightforward honest person with permanent injury. No overstatement, no gilding. I prove injury and damages to a decent person who is legitimately injured. This is done in a simple common sense way so the picture is clear with no confusion.

Closing and Frame of Reference. During closing argument I return to the mutual promises. In jury selection I promised to demonstrate a proper lawsuit and a legitimately injured person. Remember we discussed there are proper lawsuits that deserve compensation. I remind the jury they agreed to provide justice in the form of reasonable compensation for a proper lawsuit. Here we have a proper lawsuit and you now have the job to recognize it and distinguish it from a bad lawsuit by providing fair compensation.

Although the bias is this still there it has been suspended during the trial. In fact the bias has been reinforced as the jurors now have recognized there is a frame of reference from which to distinguish the bad from the good. “Fortunately, you are jurors on a legitimate lawsuit and your verdict will show that in our community a legitimately injured person receives fair compensation.”

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September 17th, 2023

The Yin and Yang of Personal Injury Practice

T’ai Chi theory teaches we have capacity beyond what is commonly believed. We are capable of a higher level of achievement. Boundaries or rails on higher achievement come from restrictions or barriers we place on our capability “One reaches the ultimate level, or develops in that direction, by means of the ladder of balanced powers and their natural motions-Yin, the negative power (yielding), and Yang, the positive power (action).” Waysun Liao, The Essence of T’ai Chi, (Shambhala 2007) at 6.

Yin and Yang oppose and complement each other. When this natural law of balance is lost so is our ultimate capacity. This can happen when a trial lawyer loses balance (often when the charging Yang dominates the yielding Yin).

All cases cannot be tried, and some cases should be settled. The trial lawyer knows all cases cannot be settled and some cases should not be settled. The key is balance. Balance is knowing when to try a case and knowing when to settle a case.

Balance of Yin and Yang is the key. At the beginning of a case Yang is often in the lead. In dealing with an insurance company this is good as fair case value is achieved when the insurance company knows the lawyer believes in the case and will try the case. The successful trial lawyer never takes a case they do not believe in, as belief is essential for success in trial. When the trial lawyer believes in the case a Yang aura permeates the case. The insurance company takes the case seriously. The Yin aura emerges after the insurance company takes the case seriously. This is when fair value may be paid. This balance of Yin and Yang can lead to a quality settlement,

“The Chinese have long realized the two T’ai Chi elemental powers must interact, and the harmonious result …[brings] progress and unlimited development.” Id. at 8. When we practice personal injury law balancing the two powers of Yin and Yang we benefit our client and our law practice.

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August 17th, 2023

Being A Humble Trial Lawyer

According to Thomas Merton “[t]rue humility excludes self-consciousness… .” Thomas Merton, Seeds of Contemplation at 112 (New Directions 1949).

A humble trial lawyer is beyond thinking of themself. Their focus is with their client, the pursuit of justice and accomplishing this at trial. In this state there are no illusions to defend. The humble trial lawyer’s movement is free.

The humble trial lawyer “can do great things with an uncommon perfection because [they are] no longer concerned about incidentals, like their interests and reputation, and therefore they no longer need to waste effort in defending them.” Id. at 113. A humble lawyer is not afraid of failure. They are not afraid of anything, even themself, since perfect humility implies perfect confidence in the power of … [believing in themself and their client’s case] … so there is no such thing as an obstacle.”Id.

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Plaintiff Cannot Overcome Adversity

Personal Injury as Tragedy

Masters of the Art of Living

The Varieties of Religious Experience-Mysticism

Proud to be a Trial Lawyer

Books That Helped Me Be a Better Trial Lawyer

First Impression

Tribute to Howard Nations-The Spielberg Method

The Yin and Yang of Personal Injury Practice

Being A Humble Trial Lawyer

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