May 7th, 2022

Method Lawyering-Living The Truth

Living the truth occurs when the lawyer is so connected to the truth and their client they have entered into the reality of their client. The lawyer feels what the client feels and thinks like the client thinks. This is short of losing the self. Rather the lawyer’s  consciousness and the client’s consciousness meet. (Butler, The Method at xiv). To Stanislavski living the truth is the highest level, the artistic mountaintop that all lawyers should strive to reach.

Stanislavski instilled in his acting students to serve the truth. The truth is neither philosophical nor political. To Stanislavski the truth is internal. It is the real feeling demanded of the situation. The truth leads to a sense of lived truth to the jury.

Stanislavski taught that concentration and attention help focus the lawyer’s complete physical and spiritual nature on what is going on in the soul. This in turn creates an appearance of not realizing being watched. This is powerful for the jury to see and feel as the lawyer is seen to be immersed in the truth. The secret is to present as real and present experiencing actual emotion. The lawyer introduces themself into the circle of the jury as their world is here with the jury. When the lawyer has belief in their case they have a purpose which makes natural behavior easier to create. 

By speaking the truth the lawyer speaks to the needs of the jury because the truth is what we naturally want. The truth is what we see as our common language. The keys to Stanislavski’s system are ACTION, in the given CIRCUMSTANCES, and IMAGINATION. The best trials move from action to action within the given circumstances. Trials deal with problems. To resolve a problem we need action, an object, adjustment and connection. Great trials require the lawyer to do something (action) to something (the object) in a way that takes into account the circumstances (adjustment) made by the scene partner the jury through (connection) and (imagination).

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April 19th, 2022

Method Lawyering

Method lawyering  in the words of Constantine Sanislavski is “Living the Truth.” Living the truth as a trial requires me to connect with my client to discover my client’s story. When done methodically I am able to convey from my heart what my client has gone through and how their future holds. My first step in living the truth is  to internalize the feelings my client experienced and continues to experience to the point I feel and think like my client.

The Oscar winning actor Frances McDormand in Blood Simple used the Living the Truth technique to authentically experience the emotions and psychology of her character in a frightening and terrorizing  scene. To do this she went to her well of experience to an experience as close as possible to the character.  She found an emotional memory of a traumatic experience to bring back her feelings. This allowed McDormand to authentically play her part for which she won the Oscar for Best Actress. See The Method at xiii.

Like a Method actor as a trial lawyer I want to get to the emotion and action of my client. I must have a deep sensitivity and experience to call upon to convey to the feelings, emotions and action of my client. According to Stanislavski getting to the level of living the part leads to the power and potential of improvisation which brings a sense of living the truth. With concentration and attention I align my physical and spiritual nature with my heart. This creates a true to life realistic ability to convey my client’s case at a level the jury can feel and relate to with their emotional memory.

This allows me to get to the level of Stanislavski’s Secret. The secret is to be real and present experiencing emotion. I am then able to be in the circle of emotions the jurors are experiencing. This allows for connection at the highest level. I must make sure in living the truth that I do not show more than what I have. To do this makes me look false. So I try to dial back and let  the jury magnify the emotion and the action so it becomes theirs and not mine.

 

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March 27th, 2022

Stanislavski and The Method

I recently read The Method by Isaac Butler. The Method was developed by Constantine Stanislavski the great Russian acting philosopher. The book takes Stanislavski from Russia in the early 20th century into the United States where his Method Acting catches fire and Butler continues to discuss American acting into the late 20th century.

As all trials are plays studying  Stanislavski helps to grow as a trial lawyer. The Stanislavski Method reminds me of Trial Lawyer’s College(TLC), where we learn to take off our mask and try cases with authenticity and without pretense.

The Method is often discussed as an exercise in Interiority. Like psychodrama at TLC the Method’s Interiority goes to my emotional memory. When working with my client I connect as best I can with what they have been through by going to my own emotional experience as similar as possible to my client’s emotional experience. This allows me to feel like my client and naturally reflect this feeling with the jury.

In The Method we learn  from Stella Adler, a student of Stanislavski and a great acting teacher, that her students must go beyond themself. We cannot expect the world to come to us so we must expand to meet the world. Adler teaches Life is beyond me so it is also outside of me, Thus, I must also go outside myself to the world. The essential thing to remember as a trial lawyer is life is in front of me and in front of the jury. This means I must go to life and take the jury with me.

To Stanislavski “Living the part” through emotional memory in line with the emotional action is the ideal to reach. To Adler moving forward  creates action and action is what we want. The best trial lawyers have sensitivity and the capacity to connect past emotional experience. This leads to a true to life natural action to moving forward with the jury.

 

 

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March 1st, 2022

Opening Statement Thoughts

Darin Strauss in The Fine Art Of Where To Start [a story] teaches the most important part of a story is the beginning as in the first words out of my mouth in opening statement. In Opening Statement I Tell a Story.  In a personal injury case the story involves the injury to my client.

When telling my story I remember “A story equals trouble.” My personal injury story must discuss how the trouble caused injury to my client.  Strauss teaches the sooner I introduce trouble into my story the more likely my listeners (the jury) will pay attention. This means beginning the story with the  action of the trouble. 

Jacob Appel in Writer’s Digest reasons: “I started devoting an entire session of my writing class to opening lines when I realized that the last formal instruction I’d had on the subject was the grade school admonition that stories should begin with a hook. In the years since, I’ve come to believe that the fate of most …[stories] is sealed within the initial …[phrases]—and that the seeds of that triumph or defeat are usually sown by the end of the very first sentence.”

 

 

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February 15th, 2022

Offensive Innovation

Offensive Innovation comes from Gerry Spence and Stephen King.  Speaking to experienced trial lawyers at the Trial Lawyer’s College Gerry Spence explained “you have yet to try your first case because you have been practicing law and trying cases in a way that is expected of you.” At the college we learn to take off our mask and proceed how we intuitively know is right.

 In Stephen King’s book 11/22/63 there is a passage where Jake Epping a high school English teacher tells about  Harry Dunning, a janitor who returns to finish high school:

“My honors kids were juniors…but they were like little old men and little old ladies, all pursey-mouthed and ooo, don’t slip on that icy patch, Mildred. In spite of his grammatical lapses and painstaking cursive, Harry Dunning had written like a hero. … As I was musing on the difference between offensive and defensive writing… .”

Offensive innovation means knowing yourself, trusting your ability to know what is right and acting on it. Taking action in an offensive way going with what I know instinctively without defensive thinking.

Years ago I was at a lecture by the great painter, William Cumming. During the question and answer session a young man asked Mr. Cumming if an artist can learn by studying painting at an art school. William Cumming answered “the ability to create art is not taught. It comes from inside the artist.” The artist knows inside what he wants to paint and he paints it without regard for how it will be received. The artist is painting with “offensive innovation.”

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January 20th, 2022

Building a Relationship

Carl Rogers in On Becoming a Person discusses building a relationship. The first step in building a meaningful relationship is to be genuine. This sounds simple but it is not. We often project something we want another to think we are. But this false projection dooms any hope of building a constructive relationship.

To be genuine I must be aware of my feelings. I express the feelings and attitudes that exist within me. “It is only in this way that the relationship can have reality, and reality … [is] deeply important as a first condition [of a meaningful relationship]”. Carl Rogers, On Becoming a Person (1961).

Rogers said this over fifty years ago. He was right then and his words remain true today. Drop pretense, be yourself and allow yourself to be real in relationships. You will go beyond a false facade into a meaningful relationship.

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December 28th, 2021

C.S. Lewis on Sin

C.S Lewis in Mere Christianity teaches there are sins of the flesh and sins of the mind. To Lewis the greatest sins of these two sin categories are sins of the mind. Lewis maintains the worst sin of the mind is to think we are better than another. Thus, to Lewis the sanctimonious long time church goer who judges the prostitute entering church as a sinner and non worthy is a greater sinner than the prostitute.

William Blake goes further saying the only sin is the accusation of sin. “Accusation in any of its forms, is a negative judgment, and a negative judgment in any form ruptures relationship-the classical definition of sin.” Joseph Chilton Pearce, The Biology Of Transcendence (2002) at 128.

Both are correct. To hold myself  superior to another is wrong and a badge of arrogance and conceit. I must remember we are all made up of the same cosmic stuff. We are all in constant motion. We are all in this together. No one’s cosmic stuff is better than another one’s cosmic stuff.

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December 8th, 2021

CHUANG TZU ON THE RIGHT WAY

Thomas Merton in THE WAY OF CHUANG TZU writing on how “the central pivot of tao: relates to an artist and craftsman and to all of us in our pursuits:

[W]e see that the accomplished craftsman does not simply proceed according to certain fixed rules and external standards. To do so is, of course, perfectly alright for the mediocre artisan. But the superior work of art proceeds from a hidden and spiritual principle which, in fasting, detachment, forgetfulness of results. and abandonment of all hope of profit, discovers precisely the tree that is waiting to have this particular work carved from it. In such a case,  the artist works as though passively, and it is Tao that works in and through him. This is a favorite theme of Chuang Tzu, and  we find it often repeated. The “right way” of making things is beyond self conscious reflection, for “when the shoe fits, the foot is forgotten.”

Merton, THE WAY OF CHUANG TZU, The Abby of Gethesmani (1965) at 31.

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November 20th, 2021

Great Cross Examination-Gregory Peck

Dealing with a lying witness will happen to every lawyer who tries cases. Francis Wellman in The Art of Cross Examination (1903) discusses the perjured witness.

In Chapter IV,  Wellman points out a false testimony witness may display “in the voice, in a vacant expression of the eyes, [and] in a nervous twisting in the witness chair….” We see these traits in Mayella Violet Ewell in the the movie clip from To Kill A Mockingbird where Gregory Peck presents classic cross examination.

Wellman covers techniques to use on the unsophisticated lying witness. “Try taking the witness to the middle of the story then jump… to the beginning then to the end.” This works because the witness has “no facts with which to associate the wording of her story.” She can “only call to mind as a whole rather than detachments.”

Wellman teaches “[d]raw attention to facts dissociated from the main story as told. [S]he will be entirely unprepared.” (This is seen in the clip when Peck demonstrates Tom’s lame left arm). Then, like Gregpry Peck in our film clip, return to the facts you have called to her attention (Tom’s lame left arm) and ask her the same question again (how did the rape take place given prior testimony).

As we learn from  Wellman  she cannot invent answers as fast as the questions.”[S]he will…become confused and from that time be at your mercy.” Then Wellman says let her go as soon as you have made it clear her testimony is not mistaken but lying.

As we see in the clip, and as predicted by Wellman, Mayella Ewell, is at the mercy of Atticus Finch. She cracks as Atticus and everyone else watches. This is the ultimate cross examination of a perjured witness.

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October 18th, 2021

Direct & Cross Examination-“Six Honest Serving-Men”

Years ago I attended a Day With Paul Luvera where the great trial lawyer quoted Rudyard Kipling’s “Six Honest Serving Men” when discussing cross examination. From Paul Luvera these six question areas have served me well.

When I prepare for direct and cross I first write out my questions. This seeds my memory as I write my lines and read them back committing them to memory. At trial during direct I rarely refer to my lines. I simply have a conversation with the witness. For cross I do refer to my lines because my lines are the lines of the opposition witness. I note where in the deposition or in a document the witness line to my question is so I can impeach if he fails to agree.

In all cases I find myself referring to the “six honest serving-men.” These six friends are always with me as they often assist in deeper penetration in direct and cross. Below are some examples on how they can help:

Who. For direct I begin with who are you questions. The jury wants to know where plaintiff grew up-“Where did you go to high school and what year did you graduate?” The jury needs to learn about plaintiff”s  job and activities before her injuries so they can appreciate how plaintiff has been impacted by her injuries. On cross who are you questions are effective when the witness has misled the jury on her background. Who are you questions allow penetration into background which can lead to destruction of the witness.

What. After finding out who the witness is, I am ready for what questions. On direct of plaintiff, what happened often follows who are you. What happened elicits the story on the mechanism of the injury. Also what questions elicit the facts of the injury. On cross what questions go to the foundation for the witness’s testimony : ” What documents have you relied upon.”

When. The remember when questions are:  “When did you first have symptoms?” “When did you treat for your injuries?” “When were you last able to [engage in particular activity].” “When did you [do particular activity]?” On cross when questions pin down timing of events.

How. The how questions go to how plaintiff is overcoming injuries. If future medical is needed then this is a how question answer. If activities must be altered then this is a how question answer. For an expert how questions uncover how the expert arrived at his conclusion. For a lay witness how questions on cross go to how the witness is able to make his statement based on the facts.

Where. Where questions are important for painting a picture through testimony of where the event occurred. This holds true on both direct and cross. Key facts in every case occur at particular places. Our friend where ensures we make the place clear in the jury’s mind.

Why. The classic rule on cross examination is never ask a question unless I know the answer. This holds true on direct as well. Although why is one of my six friends, he is rarely used. When he is used, however, he can be deadly. I never use him though if he can be deadly to me.

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