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.

      July 11th, 2020

      Defending the Deposition of Developmentally Disabled Client

      Representing a developmentally disabled (DD)  client brings considerations beyond what we typically encounter. Here is how I address the deposition without first getting a protective order.

      DD Defined. RCW 71A.10.020(4)  provides in part: “Developmental disability” means a disability attributable to an intellectual disability…[which] originates before the individual attains age eighteen, which has continued or can be expected to continue indefinitely, and which constitutes a substantial limitation to the individual.”

      Competent to Testify. The DD client is competent to testify so long as he is capable of speaking the truth, receiving an accurate impression of it, has sufficient memory to retain it, has the capacity to express it in words, and can understand simple questions about it. Understanding and answering simple questions is key when the DD client must be examined.  In a deposition we have competing issues-the right to conduct legitimate discovery verses the right to protect our DD client from discovery abuse.

      Witness Preparation. For the DD client  preparation is minimal. First hear the key elements of the story. Do not rehash the story. Tell the DD client the lawyer on the other side will ask questions about what happened: “Listen to the question.”  “Answer the question.” “Always tell the truth.”

      Open and Close Door. We must allow opposition to engage in legitimate discovery. We must leave the door open so long as this is occurring. Once an area has been explored, we are confident the record reveals this, and further inquiry is oppressive, I close the door as follows:

      CR 26 (i) Conference. With the DD client out of the room I begin a separate record: “Pursuant to Cr 26(i) counsel must confer before the court will entertain any motion or objection regarding rules 26 through 37. This is a CR 26(i) conference.”

      Court has Discretion to Protect. “While [DD Client] is competent to testify he is developmentally disabled. Pursuant to CR 27(a)(2) the court shall make such order as appropriate for the protection of the developmentally disabled party. Additionally as his attorney I have an obligation to protect [my client] from discovery abuse.”

      CR 30(d). “An instruction not to answer is proper when made pursuant to CR 30(d).” “Pursuant to CR 30(d), at any time during the taking of a deposition upon a showing the examination is being conducted in such a manner as to unreasonably annoy, embarrass, or harass the party the court may order the deposition cease.” “Upon demand of the objecting party the deposition shall be suspended for the time necessary to make a CR 26(c) protective order motion.”

      CR 26(c). “The court may make an appropriate order to protect a party from annoyance, embarrassment, or oppression. At this point in the deposition further questions concerning [area where we are closing door] constitute oppression [of DD Client].”

      Instructing Not to Answer.  “I am instructing you [my client] will not  answer further questions (set forth area[s] where you are closing the door as you are confident the judge will grant a protective order prohibiting further discovery). I am doing this outside of his presence because I do not want to chill further legitimate discovery.”

      Your Choice Counsel. “Counsel if you chose we will proceed to court now to discuss a protective order. Alternatively, continue to explore other areas of discovery. If you deem it necessary to seek further discovery into the area I am instructing my client not to answer we can cooperate on scheduling a protective order hearing at a later date.”

        June 21st, 2020

        What is Chance

        At moments everything is clear, and when that happens we see that the world is barely there at all. It’s a perfectly balanced mechanism of shouts and echoes pretending to be wheels of cogs, a dream clock chiming beneath a mystery-glass we call life.

        Let’s concede how our lives are jostled and spun around, that nothing is fixed, that even the ground we stand on is in motion. Underneith us there is only instability. Beyond us, there is only chance.

        (Pieced together from  Stephen King and Jon Mooallem).

          June 14th, 2020

          Write and Speak with Conviction

          Starting as a young lawyer and continuing  I consult Professors Strunk and White, The Elements of Style, for speaking and writing with power and conviction. Below are maxims from their book.

          Place Yourself in the Background. According to professors Strunk and White good writing (and speaking) comes naturally without trying to effect a certain mood or temper.  Write and speak so the recipient is drawn to what you are writing or talking about rather than your emotional take on the subject. In this way the recipient is drawn to the substance.   If the substance is there the recipient will have an emotional response. 

          Write and Speak Naturally.  Be yourself. Forget about imitating someone else.  Admittedly, we are all imitators and have been since babies.  The key is draw on our experiences rather than a copy of the source. This allows the message to be our message which is authentic.

          Never Overwrite or Overstate. Stick to the facts without gilding or adding. When we overstate the reader or listener knows. The message is processed in a negative way like this person is trying to sell me something.

          Write and Speak with Nouns and Verbs. Eliminate adjectives and adverbs. As stated by professors Strunk and White: “The adjective hasn’t been built that can pull a weak or inaccurate noun out of a tight place.” It is nouns and verbs, not their assistants, that give good writing and speaking its toughness and color.

          Avoid the Use of Qualifiers. This means words such as rather, very, little, pretty, and probably to name a few. As stated by the professors: “These are the leeches that infest the pond of good prose, sucking the blood of words.” The use of the adjective “little” is particularly debilitating. “Little” is a badge of a weak speaker or writer.  The same is true with other qualifiers.

          Active Voice. Speak and write in the active voice whenever you have a choice. The active voice “I will speak and write with conviction” has power. The passive voice conveys weakness: “I will try to speak or write with conviction.”

          Write and Speak at High Level. When speaking use the ing.  Rather than “I’m thinken about doen it, ” say I am thinking about doing it.” This elevates you  to to a speaker with more education in the listener’s mind. The listener consciously and subconsciously hears your messgae as more educated. Eliminate slang in writing and speaking. This puts you at a higher level.

          Make the Point and Stop. As stated by our professors “do not explain too much.”  When saying too much adverbs and adjectives creep into speaking or writing. This makes the message weak rather than strong. Shakespeare says: ” The lady doth protest  too much me thinks.”

          Avoid Fancy Words. Speak and write like you are talking to a high school student. Avoid words of  trade that only fellow trade members know.  Avoid foreign language;  it sounds like you are trying to impress;  it is not impressive to deliver a message the recipient misses.

          Remember John Wayne’s Maxim:  “Speak slow, speak low, and don’t  say too much.”

            June 5th, 2020

            Being Real

            What is REAL asked the Rabbit one day, when they were lying side by side near the nursery fender, before Nana came to tidy the room. “Does it mean having things that buzz inside you and a stick-out handle?

            “Real isn’t how you are made,” said the Skin Horse. “It’s a thing that happens to you. When a child loves you for a long, long time not just to play with, but REALLY loves you, then you become Real.”

            “Does it hurt?”

            “Sometimes,” said the Skin Horse, for he was always truthful. “When you are Real you don’t mind being hurt.”

            “Does it happen all at once,” he asked, “or bit by bit?”

            “It doesn’t happen all at once,” said the Skin Horse. “You become. It takes a long time. That’s why it doesn’t happen to people who break easily, or have sharp edges, or have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby. But those things don’t matter at all, because once you are real you can’t be ugly, except to people who don’t understand.”

            Margery Williams, The Velveteen Rabbit (1922).

             

              February 29th, 2020

              Great Cross Examination-Charles Laughton

               Cross examination is a challenging part of the trial.  It presents the opportunity to either turn an adverse witness into my witness or destroy the adverse witness. Either way my case benefits form successful cross examination.

              My preference is to turn the witness into my witness. On destroying the adverse witness I do this in a way the jury will accept. I never embarrass, badger, or abuse a witness.

              One of my favorite cross examination movie scenes is Charles Laughton in Witness for the Prosecution.  As we see from viewing this short but sweet cross, Laughton is able to destroy a fact witness in a way acceptable to the jury. He uses the classic inability to perceive facts to destroy the witness.

              As we see in the clip Laughton begins by setting the foundation for inability to hear (and hearing a conversation is the basis for the adverse testimony). In setting the foundation Laughton begins by asking the witness in a booming voice if she recently applied for a hearing aid. In doing this Laughton uses change of voice (going into a less audible voice) to dramatically illustrate the witness’s hearing problem. When the prosecutor objects Laughton unfazed agrees to repeat the question.

              In a booming voice Laughton restates his question with the witness admitting she has yet to receive her hearing aide. Continuing in his booming voice Laughton verbally summarizes the witness’s testimony. In doing this he paints the scene within which the witness is supposed to have heard a conversation that could not be heard by a person with poor hearing. Then by again lowering his voice Laughton demonstrates the witness’s inability to hear as she again cannot hear Laughton’s lowered voice. The damage is done. The witness is destroyed without being embarrassed, badgered or abused.

                February 9th, 2020

                Jury Selection (With Help from Carl Rogers)

                These are jury selection thoughts thoughts based on Carl Rogers, On Becoming a Person (1961).

                In my relationships with persons I have found that it does not help… to act as though I were something that I am not.”

                The first step in becoming one with the jury is to be real. Being real is being honest. Honest about the bad as well as the good.  Discuss the essence of the case especially the bad facts and problem areas. When this is done reveal how you  feel. Jurors intuitively recognize this and respond by revealing feelings.

                “I have found it of enormous value when I can permit myself to understand another person.”

                Carl Rogers reveals the essence of  jury selection with this quote. Connect with jurors by listening and accepting. Listening and accepting leads to connecting and bonding. Understanding must be unconditional-even when we do not agree. We can understand without agreement. When we have understanding we have a bound.

                “I have found it highly rewarding when I accept another person.”

                Here Rogers tells us we benefit by accepting unconditionally the members of the jury panel. The panel has bounded to some extent before we meet in jury selection. They have accepted each other at various levels. They know when we accept them. When we accept them when we are not in agreement they will more readily accept us when they are not initially in agreement. In essence they accept the possibility we may be right. We may be the exception to their initial reaction. Every rule has an exception.

                “The facts are friendly.”

                Stated another way the truth is friendly. We never forget this maxim in jury selection. The truth rings with authenticity, and jurors know it. Jurors understand problems and bad facts when we deal with them openly seeking their input. We have bonded and we have to accomplish fairness together. To accomplish fairness we must together face the hurdles.

                “Life at its best, is a flowing, changing process in which nothing is fixed.”

                To relax and be fluid is essential, as we can flow with the jury panel. To do this nothing can be fixed.  We are natural and spontaneous. We move with the dynamic of the jury panel. The panel will respond favorably.

                  January 5th, 2020

                  Final Integration

                  In MERTON & SUFISM The Untold Story (Edited by Rob Baker and Gary Henry-FONS VITAE 2005) Thomas Merton discusses what he terms “Final Integration.” This is a state Confucius reached by age 70 and a mystical state to be strived for:

                  Merton teaches the “notion of rebirth” exists in most religions including Christianity, Sufism, Zen Buddhism and other religions with spiritual traditions. Here “emphasis is placed on the call to fulfill certain … potentialities in regard to one’s being, to ‘become someone’ that one already (potentially) is, the person one is truly meant to be.” Id. at 268. This is an awakening or a recognition of our universal essence. When we are “fully born” we have an “inner experience of life.” Id. at 271.

                  We live from an “inner ground” which is more universal than our ego. In this “fully born” state of “final integration” we reach a “deeper, fuller identity than that of … [our] limited ego self which is only a fragment of our being” Id. In this state we identify with everybody. We are able to experience others “joys and sufferings as our own without becoming dominated by them.” Id. 271-72.

                  The person who has “attained final integration is no longer limited by the culture in which [they] grew up.” This person embraces all of life including ordinary life, intellectual life, artistic creation, human love and spiritual life. They have passed through all of these “limiting forms while retaining all that is best and most universal in them, finally giving birth to a fully comprehensive self.” In final integration we accept not only our own community, society, friends, and culture, but all mankind. Id.

                  Here we are not bound to a limited set of values. We have a “unified vision and experience of the one truth shining out in all its various manifestations, …”  With this view of life we are able to bring perspective, liberty, and spontaneity into the lives of others. In final integration we are a peacemaker. Id. at 272.

                   

                    October 28th, 2019

                    Zen

                    Zen says enlightenment comes in everyday actions. There is no action taken for granted. Every action is lived fully in the moment without thinking about past or future.

                    Fritjof Capra, in The Tao oF Physics, discusses Zen Practice as follows:

                    We are fortunate to have a wonderful description…in Eugen Herrigel’s little book Zen in the Art of Archery. Herrigel spent more than five years with a celebrated Japanese master to learn his “mystical” art. His book is a personal account of how he experienced Zen through archery. He describes archery as presented to him as a religious ritual “danced” in spontaneous, effortless and purposeless movements. It took him many years of hard practice, which transformed his entire being, to learn how to draw the bow “spiritually,” with a kind of effortless strength, and to release the string “without intention,” letting the shot “fall from the archer like a ripe fruit.” When he reached the height of perfection, bow, arrow, goal and archer melted into one another and he did not shoot, but “it” did it for him.

                     F. Capra, The Tao oF Physics, (Shambhala 2010) at 126.