The Tao of Trial

This post takes from my last three trials, Trial Lawyer’s College, The Tao Of Pooh, and The Tao of Physics.

Preparation. In any phase of trial from voir dire to closing argument it is important to prepare. The great Clarence Darrrow memorized poems and quotes he planned on reciting during argument. It is foolhardy to go into any phase of trial without at least a preliminary outline on what needs to be covered. In my trials I write out my opening statement, my direct and cross examination questions and my closing argument.

Plastic v. Spontaneous. Although having a planned presentation or preconceived idea of how a phase of trial will go makes sense, to blindly stick to the script is plastic. It is living outside the moment of trial. Most important sticking strictly to a prepared script results in trying the case without being able to move to where the jury is at the moment. To try the case where the jury is at the moment we must also be in the moment. This can only be done if we spontaneously live in the moment with the jury.

The Way of the Tao. When we try the case in the way of the Tao we recognize the concept of change. We recognize the changes in a trial do not usually occur because of our plastic presentation. “[R]ather [the changes in trial occur] as a tendency which is innate in all things and situations.” F. Capra, The Tao of Physics at 116 (5th Ed. 2010). The moments ot the Tao are not forced, but occur 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.  For the Taoist, acting in harmony with the trial means acting spontaneously according to our true nature. This means trusting our intuitive intelligence which is innate and in the moment. We do not force ourselves. Rather we adapt our action 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 we discover our client’s story and show the story at trial. In each phase of  trial we have imaged the phase and prepared accordingly. Once we get to the phase we forget who we are (meaning any plastic presentation), live in the moment and believe in our innate intuitive nature. We include the jury as we live in the trial moment.



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