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.



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November 3rd, 2010

Success in a Jury Trial (Plaintiff a Tragic Hero)


The formula for a quality personal injury case is found in tragedy. Tragedy involving a hero suffering adversity challenging the adversity, and never giving up. In a personal injury case the adversity is the injury. The injury is challenged through medical treatment. To be compelling the personal injury tragedy requires the adversity to be greater than the hero. This means the plaintiff hero will not be able to overcome the injury. The injury is permanent.

The first requirement for success under the personal injury as tragedy formula is for plaintiff to be a “hero.” Here the requirement is honesty. Plaintiff must be true to life and realistic. Phoniness, pretense, or agenda are killers to the plaintiff as the hero.

 The only time the jury will hear from the plaintiff is in direct examination and in cross examination. According to jury consultant Harry Plotkin jurors  judge our plaintiff more by  how he comes off than by what he says. In other words witness demeanor trumps witness content. Jurors “assume that the witness’s demeanor, behavior, and reactions are indicative of the witness’s personality [and] honesty.” 

Direct Examination. Jurors do not trust or like a plaintiff who is angry, argumentative, defensive or nervous. Jurors like a plaintiff who appears confident, honest, and does not get fazed by tough questions even when it means admitting a mistake. In fact they like to see plaintiff stumble and/or admit a mistake as this is human. Being human is being like the jurors. Jurors like people who are like themselves.

Cross Examination. During cross examination plaintiff needs to be as polite and comfortable as he was during direct. In other words he needs to be the same person. Never angry or argumentative. Let opposing counsel come across as a bully as plaintiff keeps his cool and remains the same person he was on direct. As far as the substance of cross examination plaintiff should speak slow, speak succinctly, and speak the truth. Whenever possible return to the direct.

Eye Contact. Plaintiff should make eye contact with the jury during direct and cross examination. (In a judge trial or arbitration remember to treat the judge or arbitrator[s] as jurors). I stand close to the jury so my plaintiff will naturally include the jury in the direct examination conversation as he talks to me. During cross plaintiff continues to include the jury with eye contact and talking to them as well as counsel.

Counsel Table and Beyond. Jurors are studying plaintiff and his demeanor at counsel table, and when they see him in and around the courthouse. Plaintiff should always conduct himself like he would at a wedding ceremony or other formal occasion. Never show anger, boredom, or excess emotion. Under no circumstances should plaintiff be involved in trying the case as in telling counsel what to do. Passing a note is ok, but it is important for counsel to be the lawyer not plaintiff. Outside the courtroom keep the formal demeanor. 

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