September 12th, 2021

Keys to High Level Performance

A successful personal injury lawyer must try the case when the insurance company is unreasonable Trial requires performance under stress. For performance at the highest level:

Prepare. First know the facts inside and out and know the law. Preparation is the foundation to successful performance. It is not the brightest who prevails it is the hardest worker. The lawyer who spends the time to internalize the facts and the law is the lawyer  who has the highest likelihood  of success. Put simply out work the opponent.

Trust Yourself. After thoroughly preparing trust yourself. Here it is essential to recognize you are ready to go. You know what you want to accomplish. You know you are able to get it done at a high level. Like all successful athletes and actors believe in yourself. This self belief results in confidence.

Accept Inability to Control Result. Recognize  the only thing you have control over is yourself. You have the ability to put the time in for preparation. You have the ability to methodically go about the trial or task. You do not have the ability to control the result. And the result may be bad. This must be realized and accepted. Doing this has a psychological or subconscious effect of relaxation and performance without the stress of having to win. This in turn allows performance to take place in the present where natural talent and instinct  emerge to allow high performance.

Visualize High Performance. Successful athletes and actors visualize the game or play before it happens. Often this is as simple as remembering past success and calling on the thought process that occurred. This is an imaginary dress rehearsal. When the event happens the successful athlete or actor is psychologically ready for high performance.

Remember Peaks and Valleys. The great coach John Wooden wrote a note to Rick Neuheisel when Neuheisal started as head football coach at UCLA. The note included the statement  “there will be peaks and valleys.” Great coaches remember the peaks and forget the valleys. No quality athlete or actor dwells on past failures. Forget about past failure and move on. This is what a successful trial lawyer must do.

Simplicity is Beauty. Remember to keep  presentation simple. When in doubt remember the rule “less is more.” Lawyers tend to talk too much and complicate the picture. This risks confusion with the  jury. Confusion with the jury is the darling of the defense lawyer’s nursery. Tell the jury what you want and why it matters. Once this is done move on. Remember  jurors want to hear what they need to know, but they do not want to hear what they do not need to know.

Never Give Up. There will be hard trial times as in “peaks and valleys.” The key is to never quit on yourself. The key is to continue to move ahead at the highest level possible. Remember you cannot control the outcome but you can control giving your best effort. Giving your best effort means living in the present at the highest level until the end.

    August 28th, 2021

    The Five Tibetans

    “The human energy system is an energetic webbing that permeates the entire body. It is the system that empowers the body and energizes and enlivens the mind, providing the energetic foundation upon which the body is built. It is the network through which all life energy flows.” Kilham, The Five Tibetans (1994) at 10. Kilhan points out we are incarnate beings meaning we are beings who live in bodies.

    For the highest form of existence we coordinate our body and mind. To do this takes practice and exercise. For example the practice of yoga teaches to be in tune with the energy currents of our body. In this way we consciously unite mind and body.

    In the 1920s an American geographer, Edwin Dingle, lived in Tibet studying with Tibetan Monks. His studies included a series of five exercises known as the Five Tibetans. These exercises, yoga in nature, increase strength, energy and mental alertness. They open up the body/mind energy system and balance energy. Read the rest of this entry »

      August 15th, 2021

      Tragic Plot Applied to Trial

       

      Aristotle in Poetics teaches the phenomena of tragedy and the elements of a tragic play. Applied to a personal injury case we must have a hero, who sustains adversity, does his best to overcome the adversity, but he will never fully overcome.  Our client is the hero. The adversity is the injury. Treatment is trying to overcome the injury. Not being able to fully recover is permanent injury.

      Aristotle teaches plot distinguishes great tragedy. In great tragedy plot is bigger than the hero. Plot concerns how the universe works, which is universal truth. Plot is recognized as such by the audience (jury). In great tragedy the audience sees the hero like them subject to universal truth.  

      According to Professor Barbara McManus, Outline of Aristotle’s Theory of Tragedy, in Poetics:

       The most important feature of  great tragedy is “the arrangement of the incidents:” not the story itself  but the way the incidents are presented, the structure of the play. According to Aristotle, tragedies where the outcome depends on a tightly constructed cause-and-effect chain of actions are superior to those that depend primarily on the character and personality of the protagonist. Plots that meet this criterion will have the following qualities:

      The plot must be “a whole,” with a beginning, middle, and end. The beginning, called by modern critics the incentive moment, must start the cause-and-effect chain but not be dependent on anything outside the compass of the play (its causes are downplayed and its effects are stressed). The middle, or climax, must be caused by earlier incidents and itself cause the incidents that follow it (causes and effects are stressed). The end, or resolution, must be caused by the preceding events but not lead to other incidents outside the compass of the play (causes are stressed and effects downplayed); the end resolves the problem created during the incentive moment. Id. (Barbara McManus).

      The plot must be “complete,” having “unity of action.” By this Aristotle means the trial must be structurally self-contained, with the incidents bound together by internal necessity, each action leading inevitably to the next. The worst kinds of trials are “‘episodic [where] acts succeed one another without probable or necessary sequence.” The only thing that ties the case together are events that happen to plaintiff. Events that occur to plaintiff must have a fated connection to the universal truth. While the lawyer cannot change the facts that make up the case, he “ought to show invention of his own and skillfully handle the traditional materials” to create unity of action in the trial. Barbara McManus, Outline of Aristotle’s Theory of Tragedy in the POETICS.

      The trial must be “of a certain magnitude,” both quantitatively (efficient and understandable) and qualitatively (universal significance). Today Aristotle would agree trials should be straight forward and efficient showing universal truth and significant meaning so the audience responds by implementing the universal truth. 

        July 21st, 2021

        Plaintiff Attempts to Overcome Adversity

         

        Aristotle teaches tragedy is the imitation of action in life. Well-being (health) and ill-being (injury) “reside in action” with the goal of life being activity. “People achieve well-being or its opposite on the basis of how they fare.” Poetics (The Primacy of Plot). The “plot” in tragedy concerns the action and how the hero fares.

        There are two types of plot according to Aristotle- “simple” and “complex.” Complex plot is a higher level tragedy. In a simple plot there is only a change of fortune. In a complex plot there is change of fortune and reversal or recognition or both. Reversal is change to the opposite. Recognition is change from ignorance to knowledge.

        According to Aristotle when the audience identifies with the hero seeing a cause and effect series of action, and the action involves reversal with accompanying recognition, the audience relates to the plot with pity for the hero and  fear the change of fortune can happen to them. This is tragedy at the highest level.

        In a personal injury case the change of fortune to the hero is the injury. The recognition is  what happens next.     This means how the injured plaintiff reacts. The audience wants to see the hero doing everything she can to overcome the adversity. The recognition can be of a profound life changing result. The audience (jury) seeing the reversal of fortune, and  plaintiff recognition she must overcome, wants justice for plaintiff.

          July 1st, 2021

          Personal Injury Adversity

           

           

          The second element of personal injury tragedy is adversity. The audience relates to a true to life, realistic, honest hero.  In tragedy there must be  adversity or harm to the hero. Without harm there is no reason to be concerned about our hero. The audience must see adversity and the hero overcoming it to continue his quest.     

          There must be a cause for the adversity. This is the action, force or villain unleashed on our hero. The audience will want to address the adversity when it violates a universal truth or the hero’s quest. The reaction is to prevent this from happening again and address the impact of the adversity.

          The hero should understand the mechanism for her adversity. Once this is done, and the audience relates to the adversity,  the hero’s focus is overcoming the adversity.  According to Aristotle the key to tragedy is change in fortune, and how the hero deals with the change. It is important for the hero to focus on the effect rather than the cause. Focus on the cause redirects  the audience’s attention from the effect which is off plot. In high level tragedy the audience is ready to deal with the effect.

           

            June 18th, 2021

            Characteristics of the Personal Injury Plaintiff/Hero

             

            Aristotle discusses the traits of the tragic hero. The hero does not need to be an award winner or have recognized accomplishments. The key is be true to life and realistic.  There is a lack of pretense. The audience needs to see the hero as appropriate to his or her position in life. There is no exaggeration, and the hero is consistent in his actions.

            Applied to a personal injury case this means the plaintiff is an honest person. There is never overstatement. What is important is honesty in pursuit of deliberate choices. In other words the hero has thought out his goals and direction in life. He is pursuing a deliberate path. With candor and straight forwardness he admits failure and success.

            In a tragic play the audience sees the realistic person as they see themself. In a personal injury case the same phenomena occurs with the jury when they see plaintiff as a true to life person who tells it like it is. This is appealing and worthy of consideration. In tragedy the hero must face adversity. Once the audience relates to the hero they relate to the hero facing adversity.

             

              June 1st, 2021

              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 found  Aristotle in Poetics sets forth what has become the classic formula for tragedy and it fits a personal injury case.

              Plato and Aristotle argued about whether the study of tragedy is worthy of a philosopher’s time. Plato maintained all theater including tragedy is  entertainment not rising to the level of philosophical interest. Aristotle disagreed. Aristotle argued tragedy at the highest level involves the audience. The audience feels the tragic plot in cause and effect sequences that mirror universal truth.

              In high level tragedy two things happen to the audience. First, they pity the tragic hero. Second, they fear the tragic result (the adversity) could happen to them. Aristotle maintains when this occurs the audience experiences a cathartic event – a purification or spiritual renewal. According to Aristotle, when members of the jury identify with  plaintiff, pity the tragic result dealt plaintiff, and fear the result could happen to them, a catharsis occurs in the verdict as the jury rights the wrong.

              It is important to note tragedy is neither staged nor made up. As taught by Aristotle tragedy represents reality.  People recognize tragedy and if possible want to remedy tragedy. When a personal injury case has the dynamics of tragedy we have a case worthy of trial production.

                May 10th, 2021

                Learning from Simon Rifkind

                Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).

                Q. Judge there  has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?

                A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… . I’m not aware of any decline in the capacity of trial lawyers.

                Q. What are the requirements of a successful trial lawyer?

                A. It is essential a trial lawyer come into the courtroom knowing his case.

                A, He must know the facts.

                B, He must know what he is trying to establish.

                C, must have a strategy and a program for achieving it.

                To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”

                To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”

                Q. So what would you do to become a quality trial lawyer?

                A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.

                Q. Do you try a case before a jury different than a bench trial.

                A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.

                You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.

                The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.

                (Edited by PAT).

                 

                  April 10th, 2021

                  Lessons from Simon Rifkind

                  Beginning in law school law school I knew I wanted to be a trial lawyer. This meant studying trial lawyers. I started with Simon Rifkind. From Rifkind I learned trials are plays.

                  Simon Rifkind was a Wall Street lawyer and partner in the firm Paul, Weiss, Rifkind. He was appointed by Franklin D. Roosevelt, as Federal Judge, Southern District of New York

                  (1941-1950). He voluntarily left the federal bench because he was bored with poor lawyering which, according to Rifkind, was the rule rather than the exception. He returned to trying cases.

                  Rifkind’s passion was trying cases. He was a renaissance trial lawyer who tried different types of cases. He tried cases in various areas to learn new aspects of  life.

                  Once a case goes to trial, Rifkind knows the dynamics of trial take place. To Rifkind, a trial is a play. There is a hero (usually our client) and a villain (usually the opposition). The jury is the audience, the judge, lawyers, and witness actors. The lawyer has a unique position as he is both an actor and producer of the play. Rifkind teaches, trials like plays, must have a theme. The theme should announce the client’s cause with the ends of justice.

                  Rifkind is right, a trial is like a play. From a client standpoint, the biggest mistake occurs when the client appears to be too involved in trying the case. This is off plot. The lawyer is the person who is expected to try the case. When the client appears over involved the client loses the image of the hero and becomes a wanna be lawyer. 

                  The lawyer is like a duck, calm above the water, below the water paddling to stay afloat. The lawyer keeps a cool demeanor in the face of adversity occurring at trial. The lawyer shows professionalism to opposition counsel, witnesses, and the judge. The lawyer is neither a bully nor out of control. There is nothing wrong with destroying an opposition witness, and this at times needs to be done, with jury permission and professional firmness.

                  It is important to recognize that unlike a play the stage in trial is anywhere a juror may observe the client, lawyer, or witnesses. Rifkind would agree to dress and act like going to and being in church at all times anywhere in or even near the courthouse. Lack of professionalism observed by a juror harms the case.

                    March 18th, 2021

                    Lessons from Musashi-The Book of Wind

                    In his Fourth Book, The Book of Wind, Musashi concludes by stressing the traits of a warrior. Applied to the trial lawyer these traits are:

                    Lack of Pretense. The trial lawyer is without pretense. The trial lawyer is engaged in a career long quest to develop his spirit in the proper manner. Musashi’s, Book of Five Rings (Translated by Stephen Kaufman, Hanish 10th Dan) (1994) at 83-84.  His commitment is to his cause rather than to himself. The trial lawyer “does not go around telling everyone he is a great [trial lawyer]. He permits his actions to govern others’ responses.” Id. at 92.

                    Study Others-Be Yourself. Musashi teaches the importance of understanding the “reasons and philosophies of other systems” to benefit from our own. “Without comparison you have no reference point with which to judge for yourself and decide how to properly develop your own self.” Id. at 84. We should study other trial masters to reinforce our understanding of ourselves. In this way we constantly reevaluate ourselves.  Remember though to be yourself. When we change our methodology because of others we lose ourselves. “Eventually you are going to have to come back to your natural state. So why leave it in the first place?” Id. at 96.

                    The Big Picture. Always take the broader view of the situation. “Do not concentrate on details. Keep only one thing in mind: that thing is to beat your enemy. In this way your spirit will continue to grow and you will always be conscious of your surroundings and the situations that appear.” Id. at 95. When we are aware of all possible outcomes we “may not even have to do battle because of superior intelligence based on perception and intuition. It is possible to win a fight without ever having to go into combat.” Id at 93. This occurs when the trial lawyer knows the strengths and weaknesses of her case and is known by the opposition to try her cases.

                    Quickness over Speed. Trials are competitions. In any competition rhythm and timing are essential. Musashi recognizes this and stress quickness over speed. “Quickness gets inside of speed and enables you to control the situation… . When you advance, … advance quickly and get immediately to the point. Your speed is dependent on the speed of your [opponent]. … [A]djust yourself  accordingly and do not think in terms of being faster and slower. … [I]f you are constantly moving fast you will have no time to maintain your poise and timing.” Id. at 97. “Always move naturally and calmly… .” Id. at 98. Quickness in trial happens when we focus on the present as in the words and body language of the jury in jury selection and the witness during testimony. Rather than concentrating on prepared notes live in the moment of the trial.

                    Trial Lawyer as Warrior. In today’s legal climate the Gerry Spence metaphor of the trial lawyer as a warrior is apropos. Insurance companies rely on lawyers unwilling to try their cases. Insurance companies base low offers on this reliance. In Musashi’s time it took a warrior to get justice for the weak. In today’s economic climate it takes a lawyer willing to file his case and prosecute it through a jury trial to get justice for the injured. When the insurance company sees such a lawyer they often pay fair value “because they would prefer to fight someone else.”