Author Archive

The Yin and Yang of Personal Injury Practice

Sunday, September 17th, 2023

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 can be paid. This balance of Yin and Yang leads 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 of our client and our law practice.

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Being A Humble Trial Lawyer

Thursday, August 17th, 2023

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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The Trial Lawyer-With The Method

Saturday, July 2nd, 2022

In the words of Stella Adler a first generation student of Stanislavski: A great Trial   Lawyer is their own material. They learn to control it so they can use it at will. When trained in the fundamentals of ACTION, IMAGINATION, IMPROVISATION and CHARACTERIZATION they are ready. They are prepared to proceed with the study of the case. They analyze the trial as a whole. The trial’s line of action. In trial they focus on the given circumstance, the problem, and action over emotion.              

The trial is a collective creation that expresses in visible, audible and rhythmic images. This means real manifestations of imaginary life, places and people. This is done with clear, precise and natural feelings and emotions of the soul. A trial lawyer is a citizen of the world. They have three qualities: Confidence, Knowledge of Tradition, and a Capacity for Growth. Their goal is to experience in the present moment.

If Stella Adler is asked to describe The Method she says: The Method evolved from the first generation of Stanislavski’s Students. It has to do with psychology, remembering past experiences, and the self. The Method uses exterior means to show the interior reality of the self. The Method represents a kind of naturalism, with its chief concern being truth. The internal always relates to the external, with the whole machine powered by action.

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Method Lawyering-Post Stanislavski

Thursday, June 2nd, 2022

For The Method:

 Show Less. Always establish the mood within you and do not show more than you have for to do so will look false.So always show less and the jury will magnify it. To illustrate, in a medical case: “By pulling back they painted a realistic portrait of the medical profession creating the right emotional landscape where the [the jury] does the feeling.”

Stay Together. Speak to the times and to the spiritual needs of the jury. Have the feeling of being one with the jury by expressing their experience of past and present in common language. Problems, Action, the Given Circumstances, and Imagination are the keys to Stanislavski’s System.

Practice makes Perfect. One cannot swim without going into water. One cannot feel then do the problem. First act the problem for physical action action then you be able to feel. All you have to do is move from action to action within the given circumstances. Remember the line of psycho-physical actions-that is the memories of emotion, the lines and the physical action all intermingling. In trial speak and act with an authentic feeling using affective emotional memory.

The Method Trial Lawyer. The [Trial Lawyer] is their own material. They must learn to control it as they use it at will. When the trial lawyer has trained themself in the fundamentals of Action, Imagination, Improvisation, Characterization etc. they have done their work, and is prepared to proceed with the study of the trial, to analyze it from the standpoint of the trial as a whole and its line of action.

A Trial. A trial is a collective creation that expresses in visible, audible and rhythmic images which are real manifestations of imaginary life, places and people, by means of clear, precise and natural feelings and emotions of the soul. We try the case moment by moment allowing ourself to look and listen, we trust ourself to try the case and let things happen.



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Method Lawyering-Living The Truth

Saturday, May 7th, 2022

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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Method Lawyering

Tuesday, April 19th, 2022

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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Stanislavski and The Method

Sunday, March 27th, 2022

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  moving forward with the jury.



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Opening Statement Thoughts

Tuesday, March 1st, 2022

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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Offensive Innovation

Tuesday, February 15th, 2022

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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Building a Relationship

Thursday, January 20th, 2022

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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