Author Archive

The Varieties of Religious Experience-Mysticism

Tuesday, December 12th, 2023

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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Proud to be a Trial Lawyer

Saturday, November 25th, 2023

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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Books That Helped Me Be a Better Trial Lawyer

Friday, November 10th, 2023

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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First Impression

Tuesday, October 24th, 2023

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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Tribute to Howard Nations-The Spielberg Method

Sunday, October 15th, 2023

Problem Presented. 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 likely 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 juror or 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 legitimate personal injury case from opening statement through closing argument. This means I show my client is a straightforward honest person. 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 that 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 juror or 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 serve to make clear the legitimately injured person will receive fair compensation.”

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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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